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VMERICAN    GOVERNMENT 
AND  POLITICS 


BY 

CHARLES    A.    BEARD 

ASSOCIATE  PROFESSOR   OF   POLITICS   IN   COLUMBIA   UNIVERSITY 


THE   MACMILLAN   COMPANY 
1910 

All  rights  reserved 


-TK  ':■ 


"*Sef*«^£ 


|1|<C| 


Copyright,  1910, 
By  the  MACMILLAN   COMPANY. 


Set  up  and  electrotyped.     Published  June,  1910. 


J.  S.  Gushing  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


PREFACE 

The  several  excellent  manuals  on  American  Government  now 
available  are  written  primarily  for  high  schools,  and  there  seems 
to  be  room  for  a  volume,  not  too  elementary  nor  yet  too  tech- 
nical, designed  for  college  students  and  for  citizens  wishing 
a  general  survey  of  our  political  system.  This  volume,  taken 
in  conjunction  with  the  companion  work,  Readings  in  American 
Government  and  Politics  (cited  in  the  footnotes  as  Readings), 
is  intended  to  fill  this  gap.  It  is  not  a  contribution  to  political 
literature,  but  is  frankly  based  upon  the  best  authorities  of 
recent  times.  ^ 

I  have  many  personal  debts  to  acknowledge.  My  colleagues, 
Professors  Dunning,  Goodnow,  Munroe  Smith,  Shepherd,  and 
G.  W.  Scott,  and  Mr.  Sait  have  read  portions  of  the  manuscript 
or  proof,  and  have  given  firmness  to  every  page  they  have 
touched.  Dr.  Howard  McBain  has  read  the  parts  on  Federal 
and  State  Government,  and  through  his  extensive  knowledge 
of  practical  politics  and  administration  I  have  been  saved  many 
slips.  I  am  also  indebted  to  him  for  innumerable  corrections 
in  perspective  and  interpretation.  Professor  A.  R.  Hatton  has 
read  the  chapters  on  Municipal  Government  and,  in  addition 
to  making  a  number  of  rectifications,  he  has  shown  me  how 
much  better  they  could  have  been  done.  Mr.  Arthur  Crosby 
Ludington  has  aided  me  materially  with  ballot  and  primary 
legislation.  Mr.  Alexander  Holtzoff  has  helped  me  at  every 
point  in  the  making  of  the  volume ;  two  chapters,  on  National 
Resources  and  the  State  Judicial  System,  were  drafted  by  him 
under  my  direction  ;  and  I  owe  him  a  debt  which  no  mere  line 
in  a  preface  can  pay.  In  planning  and  executing  the  work, 
I  have  had  the  constant  and  discriminating  assistance  of  my 
wife.      Notwithstanding  all  this  cooperation,  I  must  take  the 


vi  Preface 

burden  of  responsibility  for  errors  and  shortcomings.     Only  one 

who,  has  gone  over  the  same  ground  can  appreciate  how  many 

there  are ;  but  I  trust  they  will  be  viewed  with  charity  by  those 

who  know  how  difficult  a  thing   it   is  to   describe   a   complex 

political  organism  which  is  swiftly  changing  under  our  very 

eyes. 

CHARLES  A.  BEARD. 
Columbia  University, 
April,  1910. 


TABLE   OF   CONTENTS 


PART   I 
HISTORICAL  FOUNDATIONS 

CHAPTER 

I.'f  Colonial  Origins  of  American  Institutions     . 
II.'   Independence,  Union,  and  Self-government    . 
Ill.tf  The  Establishment  of  the  Federal  Constitution 
IV.    The  Evolution  of  the  Federal  Constitution  . 
/*' V.    The  Evolution  of  State  Constitutions    . 

VI.    The  Evolution  of  Political  Issues  in  the  United  States 
VII.    The  Development  of  Party  Machinery    .        .        ,        . 


21 

34 
60 

78 
99. 

126 


/ 


^t^ 


PART   II 

THE  FEDERAL  GOVERNMENT 


VIIL 


The  General  Features  of  the  Federal  System  of  Gov- 
ernment       

^  IXi    The  Nomination  and  Election  of  the  President  . 
.-^'X.    The  Powers  of  the  President 

The  National  Administration 

The  Congress  of  the  United  States  .... 

The  Powers  of  Congress 

Congress  at  Work 

The  Federal  Judiciary 

Foreign  Affairs 

National  Defence 

Taxation  and  Finance 

The  Regulation  of  Commerce 

Natural  Resources       .        .     _ 

The  Government  of  Territories 

vii 


■      XI. 

(•   XIL 

XIIL 

XVI. 
XVII. 
XVHL 
XIX. 
XX. 
XXI. 


145      j 

166-^ 

187"" 

215 

231 

253 

294 

315, 

342 

358 

379 

401 

417  — 


Vlll 


Table  of  Contents 


PART   III 

STATE  GOVERNMENT 

CHAPTER  PAGE 

^  XXII.    The  Constitutional  Basis  of  State  Government  .        .  428 

XXIII.    Popular  Control  in  State  Governments       .        .        .  458 

^    XXIV.    The  State  Executive  Department 488 

*^    XXV.    The  State  Legislature 516 

XXVI.    The  Judicial  System 547 

>^XXVII.    The  Organization  of  Municipal  Government        .        .  578 

XXVIII.    Municipal  Functions 603 

XXIX.    Local  Rural  Government 638 

XXX. .  State  and  Local  Politics 656 

XXXI.    Taxation  and  Finance 7061 

XXXII.    Social  and  Economic  Legislation 721 

Bibliographical  Note 755 

Index 761 


AMERICAN    GOVERNMENT  AND 
POLITICS 


PART   I 
HISTORICAL    INTRODUCTION 

CHAPTER  I 

COLONIAL  ORIGINS  OF  AMERICAN  INSTITUTIONS 
AmjERICAN    ^QV^^^^'^nt    '^id    not    on'pir>a.te    in     any    ahtttrart 

theories  about  libertx_and  equality,  but  in  the  actual  experience 
gained  by  generation  after  generation  of  English  colonists  in 
managing  their  own  poUtical  affairs.  The  Revolution  did  not 
make  a  breach  in  the  continuity  of  their  institutional  Hfe.  It 
was  not  a  social  cataclysm,  the  overthrow  of  a  dominant  class, 
the  estabhshment  of  a  new  estate  in  power.  JX.wasjalher_an 
expansion  of  the  energy  of  the  ruUng  agricultural  and  commercial 
classes,  that  burst  asunder  the  bonds  with  which  the  compet- 
ing  interests  in  EnglandTlou^ht  to  restrain  their  growing  enter- 
prise. Aniericah  shipwrights  ^uld  buil3~vessels  as~fieet  and 
^Tong  as  any  that  sailed  the  seas,  and  they  were  determined  to 
conquer  by  main  strength  a  free  place  in  the  world's  market. 
American  merchants  were  as  ingenious  as  those  who  made 
England  the  nation  of  shopkeepers,  and  they  could  ill  brook  the 
restraints  which  condemned  them  to  buy  important  staples  in 
the  marts  of  Great  Britain.  America  was  rich  in  timber,  raw 
materials,  and  mineral  resources,  and  American  manufacturers 
chafed  under  laws  compelling  consumers  to  look  beyond  the  seas 
for  commodities  which  might  well  have  been  made  in  New  Eng- 
land or  Pennsylvania.  It  was  discontent  with  economic  re- 
strictions, not  with  their  fundamental  political  institutions, 
which  nerved  the  Revolutionists  to  the  great  task  of  driving 
out  King  George's  governors,  councillors,  judges,  revenue- 
officers,    and   soldiers.    The   American    Revolution,    therefore, 

B  I 


2  Aroerie^n  Goyerument  and  Politics 

was  not  the  destruction  of  an  old  regime,  although  it  made  the 
way  for  institutional  results  which  its  authors  did  not  contem- 
plate; and  it  was  not  motived  by  the  levelling  doctrines  with 
which  the  French  middle  class  undermined  the  bulwarks  of 
feudalism.^  ' 

There  had  longf  been  executive,  legislative,  and  judicial  offices 
in  aUjof  the  colonies,  and  the  Revolutionists  merelyjtgokposses- 
sjon  of  "them.  Unlike  the  French  popular  party,  theymd  not 
have  to  exercise  their  political  ingenuity  in  creating  any  fun- 
damentally new  institutions.  The  Revolutionists  of  Rhode 
Island  and  Connecticut,  where  the  governors,  councillors,  and 
judges  were  not  appointed  by  the  crown,  found  their  ancient 
systems  of  government,  based  on  seventeenth-century  charters, 
so  well  suited  to  their  needs  and  ideals  that  they  made  no  alter- 
ations beyond  casting  off  their  allegiance  to  the  King  of  Great 
Britain.  The  royal  charter  _grantedLJo_Connecticut  by  Charles 
IT  in  1662  remained-^e  rnnstitutianjof~tEat  commonwealth 
until  1818;  and  the  charter  of  the  neighboring  state  of  Rhode 
Island,  granted  in  1663,  remained  in  force  as  the  fundamental 
law  until  1842.  The  distribution  of  representation,  the  suffrage, 
the  qualifications  for  office-holders,  and  the  legislative,  execu- 
tive, and  judicial  institutions  of  old  English  origin  were  con- 
tinued after  the  Revolution  without  many  radical  alterations. 

Even  the  federal  Constitution,  in  spite  of  Mr.  Gladstone's 
high  praise  that  it  was  the  most  wonderful  work  struck  off  at 
a  given  time  by  the  brain  and  purpose  of  man,  was  based  as  far 
as  possible  on  the  experience  of  the  colonies  and  the  states. 
The  very  names  applied  to  the  Senate,  House  of  Representatives, 
and  President  were  taken  from  the  institutions  of  some  of  the 
states,  while  many  clauses  of  the  Constitution,  such  as  those 
providing  the  process  of  impeachment,  the  presidential  message 
and  veto,  t^e  origin  of  money-bills  JP  the  lower  house,  and  the 
freedom  pi  each  house-tQ_deterffiine-it§_£rocedure^mider  certain 
limitations,  were  taken  almost  verbaJim-f rami. state  constitu- 
tions.^   The  powers  which  the'Convention  of  1787  vested  in 

^  Compare,  for  instance,  the  following  chapter  with  the  accMHit  of  the  in- 
stitutional reforms  of  the  French  Revolution  in  Robinson  and.^eard,  Develop- 
ment of  Modern  Europe,  Vol.  I,  chaps,  xi  and  xii. 

^  For  a  study  of  the  sources  of  the  federal  Constitution,  see  Robinson, 
Original  and  Derived  Factors  of  the  United  Stales  Constitution,  and  the  note 


Colonial  Origins  of  American  Institutions  3 

Congress  were  scarcely  experimental,  for  six  years'  practical 
experience  with  the  shortcomings  of  the  Articles  of  Confedera- 
tion had  taught  statesmen  the  inexorable  necessity  of  giving 
the  national  government  those  very  powers,  and  limiting  the 
states  in  the  exercise  of  the  authority  which  they  had  previously 
enjoyed/  Nor  must  it  be  forgotten  that  the  right  later  assumed 
by  the  Supreme  Court  to  pass  upon  the  constitutionaUty  of  laws 
and  declare  them  void  had  already  been  exercised  by  many 
state  courts.^ 

The  dictum  of  Stubbs  that  the  roots  of  the  present  lie  deep  in 
the  past  has  now  become  commonplace;  but  it  is  true  of  Amer- 
ican institutions  in  a  very  peculiar  sense,  for  they  are  founded  on 
written  documents  which,  in  spirit  and  form,  bear  the  impress  of 
the  poUtical  and  economic  conditions  prevaiHng  at  the  time  of 
their  creation.  Many  state  constitutions  still  reveal  distinct 
traces  of  Revolutionary  days,  and  the  written  letter  of  the 
federal  Constitution,  notwithstanding  the  fifteen  amendments 
and  the  revolution  wrought  by  the  Civil  War,  remains  unchanged 
so  far  as  the  machinery  of  government  and  the  powers  of  its 
three  departments  are  concerned.  It  is,  therefore,  from  Amer- 
ican history  alone  that  one  can  learn,  for  instance,  why  there 
are  two  Senators  from  each  state,  why  the  system  of  checks  and 
balances,  so  characteristic  of  American  institutions,  was  adopted, 
why  the  President  is  chosen  through  an  elaborate  electoral 
system,  why  interstate  commerce  powers  are  vested  in  the  federal 
government,  or  why  certain  political  practices  have  sprung  up 
in  the  attempts  to  operate  our  governments,  national  and  state.^ 

The  Colonial  Governor 

On  the  eve  of  the  Revolution  there  were  thirteen  colonies  in 
America  —  each  with  its  separate  institutions  ^  and  its  peculiar 

to  chap,  iv  of  Bryce,  American  Commonwealth,  Vol.  I,  taken  from  John- 
ston's article  in  the  New  Princeton  Review,  September,  1887. 

^  See  an  illuminating  article  on  this  point  by  Professor  Max  Farrand,  in 
the  American  Political  Science  Review  for  November,  1908. 

^  Early  cases  illustrating  the  power  of  the  courts  to  declare  state  laws  in- 
valid on  constitutional  grounds  are  to  be  found  in  Thayer,  Cases  on  Constitu- 
tional Imw,  Vol.  I,  pp.  48  fif.  See  also  Professor  Charles  G.  Plaines'  valuable 
essay  on  The  Conflict  over  Judicial  Powers  (Columbia  University  Studies). 

^  Goodnow,  Politics  and  Administration,  especially  chap.  ii. 

■*  Delaware  was  under  the  proprietor  of  Pennsylvania. 


4  American  Government  and  Politics 

traditions,  many  of  which,  it  is  instructive  to  remember,  were 
then  older  than  are  our  national  traditions  to-day.  In  form 
of  government,  however,  especially  in  its  higher  ranges,  the 
colonies  presented  striking  similarities.  Each  had  a  governor, 
an  assembly,  and  a  judicial  system,  and  the  Common  Law  of 
England,  as  far  as  it  was  applicable  and  had  not  been  changed 
by  legislation,  was  binding  everywhere. 

In  eight  of  the  colonies,  —  Georgia,  North  Carolina,  South 
Carohna,  Virginia,  New  Jersey,  New  York,  New  Hampshire, 
and  Massachusetts,  ^  —  the  governor  was  appointed  by  the  king 
and  recognized  as  the  king's  personal  deputy.^  He  occupied  a 
twofoM^position.  Ontheone~TiaiRl,  he  was  the  representative 
of  British  interests  in  the  colony  —  the  agent  through  whom 
the  will  of  the  British  government  was  made  known  to  the  in- 
habitants, and  the  guardian  who  kept  the  crown  informed  on 
the  state  of  the  province.  On  tjiontherhand,  he  was  the  Mghest 
executive  official  in  the  colony,  chargedlvitii  the  cmigervation 
of  the  peace  ■and  advancemelit  ui  the  welfare  ot  tlie  colonists.^ 
As  a  contemporary  writer  put  it:  "  theTiown  delegates^'  the 
governor  for  the  time  being  all  its  constitutional  power  and 
authority,  civil  and  miHtary  —  the  power  of  legislation  50  far  as 
the  crown  has  such  —  its  judicial  and  executive  powers,  its 
powers  of  chancery,  admiralty  jurisdiction,  and  that  of  supreme 
ordinary."  ^  , 

As  the-'^Bef  exeaitive^Ji£_SuperYis^^  of. the 

laws  and  appointed.  i^uaUy-in  conncction-witli  the  advice  of  his 
co.u»cil,  the  iroporfant  civil  officers.  He  could  remove  councillors  ^ 
and  officials  for  cause,  and  direct  them  in  administration.  By 
virtue  of  his  position  as  chancellor,  he  was  head  of  the  highest 
court  in  the  colony,  which  entertained  appeals  from  lower  tri- 
bunals and  exercised  important  original  jurisdiction  in  many 

*  For  Massachusetts'  peculiar  position,  below,  p.  5. 

^  See  Readings,  p.  2,  for  a  royal  governor's  commission. 
^  Greene,  The  Provincial  Governor,  chap,  iv,  p.  65. 

*  Thomas  Pownall,  The  Administration  of  the  Colonies,  pp.  85-86. 
The  term  "supreme  ordinary"  applies  to  the  powers  of  the  king  as  head 
of  the  Church  of  England.  The  royal  governor  was  commissioned  by 
the  crown  and  commonly  styled,  "Captain-General,  and  Governor-in- 
Chief  in  and  over  the  Province,  and  Chancellor,  Vice-Admiral,  and 
Ordinary  of  the  same." 

*  Not  in  Massachusetts. 


Colonial  Origins  of  American  Institutions  5 

matters.  Moreover,  he  granted  pardons  and  reprieves.  He  was 
commander-in-chief  of  the  colonial  forces,  appointed  the  mih- 
tary  officers  of  high  rank,  levied  troops  for  defence,  and  enforced 
martial  law  in  time  of  invasion,  war,  or  rebellion.  A?  the  king's 
ecclesiastical  representative,  he  collated  to  churches  and  bene- 
fices. 

In  connection  with  the  colonial  legislature,  the  royal  governor 
also  enjoyed  extensive  powers.  In  all  of  the  eight  colonies  men- 
tioned above,  except  Massachusetts,  he  nominated  the  council 
which  composed  the  upper  house  of  the  legislature.  He  sum- 
moned, adjourned,  and  dissolved  the  assembly;  he  laid  before 
it  projects  of  law  desired  by  the  home  government;  and  he 
vetoed  laws  which  he  thought  objectionable.  He  was  thus 
endowed  by  law  with  high  authority,  and  often  increased  his 
poHtical  influence  through  his  power  of  appointing  local  sheriffs 
who  were  the  constituting  officers  at  elections  for  the  assembly, 
la. short,  thejoval  governor  enjoyed  such  high  prerogatives  in 
.colonial  times  that  the  tirst  state  constitution-makers,  having 
learned  by  experience  to  fear  executive  aUlhorityTusuallv  pro- 
vifjed  for  thfi  ^uprpmacyjof^the  legisfatnre-and  gave  their  gov- 
ernois-very  Uttle  power?  ~^" ~~ 

The  royal  governor,  however,  was  by  no  means  an  unhmited 
sovereign  in  his  province,  for  he  was  bound  by  his  instructions 
and  by  the  restraints  which  the  assembly  imposed  through  its 
power  of  controlhng  the  grants  of  money.  .  Tnd^H^  in  the 
innumerablp  di'pntn  which  fill  rolnninJ  history,  thg_  assembly 
usually  triumphed^_Q^rpr  an  nbstjiiate  governor  because  it  was 
able  to  .keep.-a^.fimx-  grip  on  the  ^aurse^strmgs.  "Toward  the 
eve  of  the  Revolution,  his  appointing  power  was  curtailed  by 
the  claims  of  the  council  to  a  share  in  the  distribution  of  patron- 
age. Moreover,  complaints  against  his  actions  often  went  to 
the  Board  of  Trade,-  while  appeals  from  his  decisions  lay  to  the 
king  in  council  across  the  sea. 

Unhke  the  other  colonies  which  had  governors  appointed  by 
the  king,  Massachusetts  had  a  charter  that  set  forth,  among 
other  things,  the  general  organization  and  powers  of  the  legis- 
lature.    The  governor  could  adjourn,  prorogue,  and  dissolve 


'  See  below,  p.  87. 

^  Whitney,  Government  of  the  Colony  of  South  Carolina,  pp.  39-40. 


6  American  Government  and  Politics 

the  assembly,  but  he  could  not  appoint  the  council,  or  upper 
house,  and  <he  could  choose  the  civil  officers  onh[_^5dtlxits_con- 
sent.  However,  he  enjoyed  considerable  military  authority  ;  he 
organized  the  miUtia,  appointed  the  chief  officers,  commanded 
tne  armed  forces,  and  declared  martial  law  in  case  of  rebeUion 
or  invasion.  Naturally  this  division  of  authority  invited  con- 
fficts,  and  it  so  happened  that  Massachusetts  led  the  way  in 
throwing  off  all  royal  authority. 

In  Rhode  Island  and  Connecticut  the_gQYernor_gccupied  a 
peculiar  position.  In  the  T5rsl~plSce7Tiewas  elected  annually 
by  ageneraT'assembly  composed~oF~Ehg"govenior,  assistants, 
and  representatives  chosen  by  the  x^errinreach  *'city,'TOWn,  or 
place."  In  tli£,second  place7"lhe~govern"or  did  not  stand  out  as 
a  distinct  official;  he  was  Uttle  more"~Than^ar-6^fUfehead,  his 
functions  being  discharged  only  in  cooperation  with  his  assist- 
ants, or  councillors.  In  each  of  these  coIomesTThe "governor  and 
assembly  were  duly  authorized  to  make  all  necessary  laws  and 
ordinances  and  manage  corporate  business  with  a  large  degree 
of  freedom.^  There  was  accordingly  no  separation  of  legislative 
and  executive  powers  as  in  the  royal  provinces,  and  the  governor 
was  constantly  controlled  in  his  office  by  the  advisers  who,  like 
himself,  were  chosen  by  the  general  assembly.  Furthermore, 
h£_£nioved  no  veto  power  over  legislation.'- 

The  executive  authonty  in  the  proprietary  colonies  of  Mary- 
land flnH^ermsyt-^arl4a^nd"^fHawar^  ""  "^^V^  on  a  diSEEn^'basis 
from  tVint  in  jj^  royal  BTOvmces  ^rJii_XoiiJ^ecticut_or_Rjiode 
Island.  Each  of  the  former  was,  as  Professor  Osgood  points  out, 
"a,  miniature longdonTor a ~semi4€udaiJ:ype„and  the  proprietor 
wiis  a  petty  king^'  Each  was  a  vast  estate  carved  out  of  the  royal 
domain  and  granted  by  the  crown  to  a  proprietor  who,  in  theory 
at  least,  combined  the  rights  of  government  with  those  of  land- 
lord, from  which  he  derived  large  revenues.  When  the  proprietor 
of  Pennsylvania  was  in  his  province,  he  assumed  executive^au- 

*  For  an  extract  from  the  Rhode  Island  Charter,  Readings,  p.  7. 

2  The  governor  of  Rhode  Island  was  given  the  veto  power  in  1009. 

'  Delaware  was  united  to  Pennsylvania  under  the  proprietorship  of 
Penn  in  1682,  and  until  1704  the  two  colonies  had  a  single  legislature. 
In  the  latter  year,  however,  separate  legislatures  were  established,  although 
they  continued  under  the  same  proprietor,  who  appointed  a  governor  for 
Delaware  to  represent  himself. 


Colonial  Origins  of  American  Institutions  'p 

thority  himself,  but  when  he  was  absent  he  vested  it  in  a  lieuten- 
ant-governor who  served  in  the  capacity  of  his  agent.^  The  Penn- 
sylvania assembly  successfully  resisted  the  power  of  the  governor 
to  dissolve  or  prorogue,  and  the  executive  council  did  not  serve 
as  an  upper  chamber,  as  was  the  case  in  the  legislatures  of  the 
other  colonies,  although  it  did  enjoy  a  somewhat  indefinite  in- 
fluence over  legislation.^  In  Marvland.  ^Hhe  proprietary  held  the 
title  tr>^  thp  land ,  \ynt;  captain-general  and  head_of  thFChtirch. 
All  patronage,  lay  and  clerical,  amounting  to  fourteen  or  tit  teen 
thousand  pounds  a  year  —  from  the  governor  with  a  salary  of 
fifteen  hundred  and  fifty  pounds  down  to  the  naval  officers  and 
sheriffs  —  was  in  his  hands.  He  had  a  negative  upon  all  laws, 
and  the  power  of  pardon.  To  the  proprietary  belonged  all  the 
quit-rents,  the  tobacco  and  tonnage  duties,  and  the  legal  fines 
and  forfeitures,  although  the  assembly  vigorously  resisted  this 
last  source  of  emolument.  .  .  .  To  the  governor,  who  was  ap- 
pointed by  the  proprietary,  the  exercise  of  all  these  sovereign 
powers  was,  as  a  rule,  entrusted.  The  governor  represented  the 
proprietary  in  the  province,  summoned,  prorogued,  and  dis- 
solved the  assembly,  and  assented  to  laws.  He  also  claimed  a 
veto  on  legislation,  but  this  right  was  not  admitted  by  the  Bur- 
gesses. He  made  all  appointments  to  office,  issued  pardons, 
signed  the  warrants  for  execution,  and  exercised  great  political 
influence."  ^  Nevertheless,  under  jfes  power  to  control  money 
grants,  the  popular  branch  of  the  legislature  in  Maryland  suc- 
ceed£d«_tQward  the  Revolution,  ir^^sernring  n  tolagafely  effertivft 
-Control  over  the  governor  in  the  exercise  of  these  large  powers. 

Colonial  Legislatures 

In  all  of  the  colonies,  exeq7tr~gen,nfiy1yar'ip.  tViprp-mgrp  two 
bi^ancheT'ot  the  legislature,  and  onlv  in  Massachusetts^  Con- 
necticut, and  Rhode  Island,  waft  the  upper  house — toii^tft  the 
term  magngratrgfise'^-  elective.  In  these  three  New  England 
colomesTtfie  councillors,  or  assistants,  as  they  were  called,  were 
chosen  by  the  general  assemblies,  and  thus  did  not  occupy  the 

'  W.  R.  Shepherd,  History  of  Proprietary  Government  in  Pennsylvania 
(Columbia  University  Studies),  p.  474. 
^  Ibid.,  p.  321. 
'Lodge,  English  Colonies  in  America,  p.  113. 


^S  American  Government  and  Politics 

same  position  of  independence  over  against  the  representative 
branch,  as  did  the  councillors  of  the  royal  colonies.  In  the  pro- 
vincial colonies,  the  upper  house,  or  council,  was  chosenHSy  the 
king  acting^  through'the  royal  governor,  who  usually  determined 
the  selection  himsell^  InllTe  proprietary  tx>l6nies,  the  proprietor 
or  his  representative  ^sekcled-lheJjDounHIIors. 

In  addition  to  the  usual  legislative  powers,  that  is,  the  right  to 
discuss  and  vote  on  laws,  the  council  had  executive  and  judicial 
functions.  It  advised  the  governor  ;  in  conjunction  with  him  it 
formed  a  judicial  tribunal ;  it  frequently  controlled  him  in  mak- 
ing appointments;  and  it  discharged  many  of  the  official  duties 
now  vested  in  higher  state  officers,  such  as  the  secretary  and 
treasurer.  In  Massachusetts,  the  governor  and  council  ap- 
pointed civil  officers;  in  South  Carolina  the  governor  had  to 
secure  the  approval  of  the  council  before  taking  any  important' 
action  or  making  an  official  appointment;  in  Rhode  Island  the 
assistants  shared  the  executive  power  of  the  governor;  and  in 
New_ Jersey  it  was,.Qnly^with  the  consent  of  the  council  that  the 
governor  appointed  judges  and"'avir7ecclesiastical,  and  military 
officials!  Where  the  council  was  elected  it  tended  to  merge  with 
the  legislature;  in  Pennsylvania,  where  it  was  the  proprietor's 
advisory  board,  it  lost  almost  all  legislative  power,  and  in  the 
royal  provinces  it  became  an  aristocratic  body,  sympathizing 
generally  with  the  governor  and  king  in  the  contests  with  the 
representative  branch  of  the  government. 

In  every  colony  there  was  an  assembly  of  representatives  chosen 
by  popular  vote,  but,  contrary  to  common  impressions,  there  was 
nothing  hke  universal  manhood  suffrage.^  In  New  York,  for 
example,  voters  for  members  of  the  assembly  —  the  lower  branch 
of  the  legislature  —  were  required  to  be  freeholders  of  lands  or 
tenements  to  the  value  of  forty  pounds  free  from  all  encum- 
brances, except  that  in  New  York  City  and  Albany  the  suffrage 
was  open  to  all  freemen  —  that  is,  all  men  who  had  been  regu- 
larly admitted  to  civic  rights.^  In  Virginia  the  voter  had  to  be 
a  freeholder  of  an  estate  of  at  least  fifty  acres  of  land,  if  there  was 
no  house  on  it;    or  twenty-five  acres  with  a  house  twelve  feet 

^Reference:  A.  E.  McKinley,  The  Suffrage  Franchise  in  the  Thirteen 
English  Colonies,  University  of  Pennsylvania  Publications  —  the  stand- 
ard authority  on  this  problem. 

-  For  a  fuller  explanation  of  this  term,  see  McKinley,  ibid.,  pp.  208  flf. 


Colonial  Origins  of  American  Institutions  9 

square;  or,  if  a  dweller  in  a  city  or  town,  he  had  to  own  a  lot  or 
part  of  a  lot  with  a  house  twelve  feet  square.  In  Massachusetts 
the  voter  for  member  of  the  legislature,  under  the  charter  of 
1 69 1,  had  to  be  a  freeholder  of  an  estate  worth  at  least  forty 
shillings  a  year,  or  the  owner  of  other  property  to  the  value  of 
forty  pounds  sterhng.  In  Pennsylvania  the  vote  was  restricted 
to  freeholders  of  fifty  acres  or  more  of  land  "well  seated"  and 
twelve  acres  cleared,  and  to  other  persons  worth  at  least  fifty 
pounds  in  lawful  money. 

As  a  result  of  these  property  ^iialif^^^^^'^'^j  a  considerable  [ 
^portion  of  the  adult  males  were  excluded  from  any  share  in  the 
government.  Exact  statistics  are  difficult  to  obtain,  and  the 
following  figures  are  given  by  Dr.  McKinley  merely  by  way 
of  illustraticjn.  He  estimates  that  in  New  York  City  the  voting 
class  included  from  one-ninth  to  one-fourteenth  of  the  total  popu-  |/ 
lation,  and  that  two-fifths  of  these  electors  were  not  owners  of 
property,  but  voted  as  freemen  of  the  city.  Taking  some  scat- 
tered figures  for  mid-century  elections  in  Virginia,  he  places 
the  voting  population  at  from  seven  to  ten  per  cent  of  the  white 
inhabitants,  and  concludes  that  "the  franchise  was  more  widely 
exercised,  if  not  more  widely  conferred,  in  Virginia  than  in  the 
more  Northern  colonies."  In  Boston  during  the  period  from 
1745  to  1754  the  number  of  voters  averaged  about  three  per  cent 
of  the  population,  but  this  was  partially  due  to  the  fact  that 
.many  duly  qualified  voters  were  ordinarily  inactive,  for  on  one 
occasion  at  least  six  and  one-half  per  cent  of  the  inhabitants 
took  part  in  an  election.  In  the  rural  districts  of  Pennsylvania 
about  one  out  of  ten  of  the  population  could  vote,  while  in  the . 
city  of  Philadelphia  the  fifty-pound  qualification  disfranchised  \^ 
so  many  inhabitants  that,  according  to  the  tax  list,  only  one  in 
fifty  possessed  the  suffrage. 

In  conclusion,  Dr.  McKinley  says:  "In  New  York  City  in 
the  elections  of  1735,  1761,  and  1769,  the  actual  voters  num- 
bered about  eight  per  cent  of  the  population.  In  Pennsylvania 
the  tax  list  figures  give  only  the  potential  voters,  but  they  show 
about  eight  per  cent  of  the  rural  population  qualified  for  the 
suffrage  and  only  two  per  cent  in  the  city  of  Philadelphia,  a 
condition  quite  in  contrast  to  that  of  New  York  City.  In  New 
England  the  actual  voters  appear  to  be  less  proportionately  than 
in  the  middle  and  southern  colonies.     Massachusetts,  for  instance, 


10  American  Government  and  Politics 

shows  only  one  person  in  fifty  as  taking  part  in  elections,  and 
Connecticut,  in  elections  immediately  preceding  the  Revo- 
lution, had  about  the  same  proportion.  In  Rhode  Island  the 
freemen  or  potential  voters  numbered  only  nine  per  cent  of  the 
population.  These  figures  are  entirely  too  few  and  too  scattered 
in  time  and  territory  to  justify  any  accurate  generalization  from 
them.  The  potential  voters  seem  to  vary  from  one-sixth  to 
one-fiftieth  of  the  population,  and  the  actual  number  of  voters 
shows  almost  an  equal  variation;  Massachusetts  and  Connec- 
ticut showing  at  times  only  two  per  cent  of  actual  voters  among 
the  population,  where  perhaps  sixteen  per  cent  were  qualified 
electors;  and  New  York  City  and  Virginia  showing  the  far  larger 
__j)roportion  of  eight  per  cent  of  the  population  as  actual  voters. 
At  best  the  colonial  elections  called  forth  both  relatively  and 


/absolutely  only  a  small  fraction  of  the  present  percentage  of 
voters.     Progerty  qualifications,  poor  means  of  communication, 

1     large  electionSistricts,  and  the  absence  of  party  organization 
/combined  to  make  the  most  sharply  contested  elections  feeble 

/  in  their  effects  upon  the  community  as  compared  with  the  wide- 
spread suffrage  of  the  twentieth  century."  ^ 

%  Most  of  the  colonies  also  followed  the  example  of  the  mother 
country  in  imposing  special  quaHfications  on  members  elected 
to  the  legislature.  In  South  CaroUna,  for  example,  a  member 
had  to  own  five  hundred  acres  of  land  and  ten  slaves  or  be  worth 
one  thousand  pounds  sterling  in  land,  houses,  or  other  property. 
New  Jersey  members  had  to  have  one  thousand  acres  freehold, 
while  in  Georgia  delegates  were  required  to  own  at  least  five 
hundred  acres  of  land.  In  addition  to  property  qualifications, 
religious  tests  were  usually  imposed  on  assemblymen. 

Following  the  ancient  practice  of  England,  representatives 
were  distributed,  in  colonial  times,  among  distinct  territorial 
districts  rather  than  among  equal  groups  of  people.  In  New 
England  the  town  was  the  unit  of  representation,  and  only  a 
slight  attempt  was  made  to  adjust  the  representation  to  the 
population.  For  example,  the  charter  of  Rhode  Island  stipu- 
lated that  Newport  should  send  not  more  than  six  persons, 
Providence,  Portsmouth,  and  Warwick  four  each,  and  other 
places,  towns,  and  cities  two  each.    The  Massachusetts  charter, 

*  Op.  cit.,  p.  487. 


Colonial  Origins  of  American  Institutions        1 1 

while  providing  that  the  original  assembly  should  consist  of  two 
representatives  from  each  town  or  place,  at  the  same  time  au- 
thorized the  assembly  to  alter  this  number  at  will;  and,  although 
the  modern  democratic  principle  of  equal  election  districts  was 
not  recognized,  an  attempt  was  made  to  give  special  weight  to 
larger  numbers.  In  the  middle  colonies,  the  county  was  the 
unit  of  representation,  and,  according  to  ancient  EngUsh  prece- 
dent, each  county  elected  its  representatives  under  the  super- 
vision of  the  sheriff  as  returning  officer.  In  South  CaroUna 
representatives  were  apportioned  among  parishes,  but  they 
varied  so  greatly  in  population  that  the  representation  was  un- 
equal, vin  .general,  it  may  be  said,  therefore,  that  the  principle 
of  equal  representation  was  not  accepted,  but  that  practical 
considerations  led  to  a  very  rough  attempt  to  give  special  recog- 
nition to  the  more  populous  areas. 

yThe  colonial  assemblies  constantly  maintained  that  they  j 
possessed  entire  and  exclusive  authority  to  regulate  their  domes-  i 
tic  concerns.^  Especially  in  the  matter  of  taxation  did  they 
stoutly  assert  their  exclusive  rights  not  only  in  formal  declara- 
tions but  also  in  actual  resistance  to  the  royal  and  proprietary 
governors.  No  attempts,  however,  were  made  to  define  and  lay 
down  colonial  legislative  powers  in  any  complete  written  instru- 
ments.^ Such  a  procedure  was  almost  unknown  to  the  poUtical 
practice  of  England;  and  no  concrete  need  for  it  had  arisen  in 
the  colonies.  In  the  charters,  the  legislative  power  conferred 
was  general,  not  specific.  For  example,  the  Massachusetts 
charter  of  1691  provided  that  the  assembly  should  have  "full 
power  and  authority  from  time  to  time  to  make,  ordain,  and 
estabUsh  all  manner  of  wholesome  and  reasonable  orders,  laws, 
statutes,  and  ordinances,  directions,  and  instructions  either  with 
penalties  or  without  (so  that  the  same  be  not  repugnant  or  con- 
trary to  the  laws  of  this  our  realm  of  England)  ^as  they  shall 
judge  to  be  for  the  good  and  welfare  of  our  said  province  or  ter- 
ritory." In  addition  to  this  general  legislative  power,  the  as- 
semblies' usually   enjoyed  a  large  control   over   the   executive 

*  Story,  Commentaries  on  the  Constitution  (5th  ed.),  Vol.  II,  p.  iig. 

*  Some  of  the  legislatures,  however,  prepared  statements  of  their 
"rights."  New  York,  for  example,  did  this  before  the  close  of  the 
seventeenth  century. 


12  American  Government  and  Politics 

department  through  their  power  to  withhold  the  salaries  of  the 
officials. 

Notwithstanding  the  Jai:ge-4€gisiative-  power  asserted  and 
enjoyed  by  the  colonial  assgmbto,  there  were  certain  legal 
limitations  on  their  authorfty.  In  the  provincial  and  proprie- 1 
tary  colonies,  the  governor  exercised  the  right  to  veto  laws/ 
and  in  all  colonies  except  Maryland,  Rhode  Island,  and  Connec- 
ticut laws  had  to  be  sent  to  England  for  royal  approval.  Fur- 
thermore a  special  act  of  Parliament  provided  that  all  laws, 
by-laws,  usages,  and  customs  in  the  colonies  repugnant  to  laws 
made  in  England  relative  to  colonial  affairs  should  be  null  and 
void.  Later,  ParUament  distinctly  asserted  that  the  colonies 
and  plantations  in  America  were  subordinate  to  and.  dependent 
on  the  crown  and  Parliament  of  Great  Britain,  which  enjoyed 
the  power  and  authority  to  make  laws  binding  the  colonies  and 
people  of  America  in  all  cases  whatsoever.  A  South  CaroUna 
court  once  went  so  far  as  to  declare  an  act  of  the  colonial  legis- 
lature of  171 2,  taking  away  the  freehold  of  one  man  and  vesting 
it  in  another,  null  and  void  on  the  ground  that  it  was  against 
common  right  and  Magna  Charta.^  At  all  events  the  colonists 
had  long  been  acquainted  with  both  theoretical  and  practical 
limitations  on  their  assembUes,  so  that,  after  gaining  indepen- 
dence, they  acquiesced,  though  not  without  contest,  in  the 
courts'  assumption  of  power  to  declare  laws  null  and  void  on 
constitutional  grounds. 

The  Colonial  Jtidiciary 

The  lowest  colonial  courts  were  those  held  by  the  justices  of 
the  peace,  who  were  generally  appointed  by  the  governor,  although 
in  some  instances  they  were  elected  by  local  freeholders.  In 
civil  matters,  these  justices  had  jurisdiction  over  cases  involving 
small  amounl^,  under  five  pounds  in  New  York  and  under  forty 
shilHngs  in  Massachusetts.  In  criminal  matters  they  were 
competent  to  try  only  the  pettiest  offences  against  the  law. 
Though  they  bore  the  name  of  ancient  local  magistrates  of  Eng- 
land, they  enjoyed  by  no  means  the  same  powers,  especially  in 

^  In  Connecticut  and  Rhode  Island  the  governor  did  not  enjoy  the 
veto  power. 

*  Thayer,  Cases  on  Constitutional  Law,  Vol.  I,  p.  53. 


Colonial  Origins  of  American  Institutions        13 

the  matters  of  administration  and  local  government.  In  Mas- 
sachusetts, and  some  other  colonies,  however,  the  old  EngHsh 
practice  of  uniting  all  the  justices  of  the  county  in  a  general 
court  of  quarter  sessions  was  followed;  and  this  court,  in  addi- 
tion to  exercising  criminal  jurisdiction,  supervised  roads,  bridges, 
inns,  and  other  county  affairs  which  are  now  usually  placed  under 
the  direction  of  county  commissioners.^ 

Above  the  justices  of  the  peace  there  were  usually  regular 
county  courts,  TKe  judges  of  which  were  appointed^ by  the  ggy- 
ernor,'  except  in  New  Jersey,  where  they  were  elected.  Generally 
-spcdong,  the  county  court  had  criminal  jurisdiction  over  all 
except  capital  cases,  although  in  Massachusetts  criminal  matters 
were  turned  over  to  sessions  of  the  justices  of  the  peace.  The 
county  courts  also  had  civil  jurisdiction  in  cases  involving  certain 
amounts. 

Each  colony  had  a  high  court  which  decided  weighty  matters 
and  appeals  from  the  lower  courts.  In  the  royal  colonies  thei 
governor  as  chancellor  and  his  council  generally  composed 
this  high  tribunal;  but  in  Massachusetts  it  consisted  of  a  chief 
justice  and  four  associates  appointed  by  the  governor  and  coun- 
cil. In  Pennsylvania  the  supreme  court  was  composed  of  a 
chief  justice  and  three  associates,  chosen  by  the  governor. 

Beyond  the  highest  court  of  the  colony,  there  Tay^pppals-tn  the 


king  in  council  in  England,  and  this  power  was  frequently  ex- 
erSed  on  the  eve"  of' the  Revolution.  Far  from  being  regarded 
as  an  infringement  on  the  rights  of  colonists,  it  was  esteemed 
a  privilege  to  be  able  to  lay  cases  before  the  members  of  this 
tribunal,  who  were  so  far  removed  from  local  jealousies.^  It 
was  of  course  an  expensive  process,  and  only  cases  involving 
certain  amounts  could  be  appealed.  In  Pennsylvania  the  amount 
had  It)  exceed  fifty  pounds,  and  in  Georgia  five  hundred  pounds, 
berore  the  case  could  be  carried  to  the  king  and  his  council, 
/while  there  were  greatdivergences_among  the  colonies  in  the 
organization  of  the  courfs~aTlTf'fIir  apportionment  of  business 
among  them,  they  thus  had  certain  features  in  common.  The 
idea  of  an  elective  judiciary,  unknown  to  EngUsh  practice,  was 
not  accepted  save  in  some  minor  instances.     The  s^^tem  of 

*  Readings,  p.  13,  on  the  powers  of  magistrates  in  Virginia. 
2  Story,  Commentaries  (5th  ed.),  Vol.  I,  p.  127. 


14  American  Government  and  Politics 

appeals  to  the  highest  colonial  court  was  universally  recognized, 
and  the  practice  of  carrying  important  cases  to  a  tribunal  above 
all  colonial  courts  was  steadily  maintained.  Consequently, 
when  the  colonists  were  later  called  upon  to  organize  their  own 
judicial  system,  they  had  to  make  but  shght  changes  in  the 
existing  arrangements. 

Municipal  and  Local  Institutions  ^ 

Although  there  were  in  the  colonies  no  cities  of  importance, 
measured  by  modem  standards,  the  foundations  of  American 
municipal  government  must  be  sought  in  colonial  times.  It 
appears  «■  that  there  were  about  twenty  municipal  corporations 
during  that  period,  each  of  which  received  its  charter  from  the 
colonial  governor  —  New  York  and  Albany  in  1686,  Philadelphia 
in  1691,  and  Trenton,  New  Jersey,  the  last,  in  1746.  (The  form 
of  organization  in  general  followed  old  EngUsh  examples;  the 
governing  body  was  a  common  council  composed  of  the  mayor, 
recorder,  aldermen,  and  councillors^  In  most  of  the  cities  the 
councilmen  and  aldermen  were  "  electe3~by  popular  vote  under 
a  franchise  which  everywhere  included  all  of  the  well-to-do 
classes  and  generally  a  large  proportion  of  the  residents,  though 
in  no  case  was  manhood  suffrage  established."  In  Philadelphia, 
Annapohs,  and  Norfolk  the  common  council  was  a  closed  cor- 
poration; that  is,  the  aldermen  and  councillors  enjoyed  Ufe 
terms  and  the  power  of  filhng  vacancies  as  they  occurred.  In 
accordance  with  English  precedent,  the  mayor  was  not  elected 
by  popular  vote.  In  a  few  instances  he  was  selected  by  the  com- 
mon council,  but  in  the  majority  of  cities,  inc^luding  New  Y^rk 
and  Albany,  he  was  appointed  by  the  provincial  govemer. 
Somewhat  restricted  powers  were  at  first  conferred  upon  the 
municipaUty  by  its  charter,  and  in  the  later  period,  before  the 
Revolution,  it  was  a  common  practice  to  secure  from  the  colonial 

t assemblies  special  acts  granting  additional  powers.    The  striking 
feature  of  the  celenial  municipal  system  was  the  fusion  of  execu- 
tive, legislative,  and  judicial  functions  in  the  hands  of  the  sanie,^ 
body;  and  it  is  interesting  to  note  that  the  commission  form-<:^ 
municipal  government  now  being  widely  adopted  throughou^a 
the  United  States  is  the  return  to  the  original  principle  in  soN 

^  Reference;  Fairlie,  Municipal  Administration,  pp.  72  fif. 


Colonial  Origins  of  American  Institutions        15 

far  as  it  vests  administrative  and  legislative  powers  in  one  au- 
thority.^ 

In  the  sphere  of  rural  local  government  we  have  departed  even 
less  from  colonial  models  than  in  other  branches  of  administra- 
tion. The  Revolution  did  not  disturb,  in  any  fundamental 
manner,  the  institutions  of  local  government  which  had  come 
down  from  early  colonial  times;  for,  as  Professor  Fairlie  says, 
"the  main  features  of  the  old  systems  continued  in  the  different 
states.  Towns  in  New  England  and  the  middle  states  and  par- 
ishes in  the  southern  states  remained  unaltered;  and  are  in  fact 
not  mentioned  in  most  of  the  constitutions  of  the  revolutionary 
period."  -  In  New  England  the  unit  of  local  adniinistratioii  was 
tlip  to^"i  which  was  governed  by  a  meeting  of  the  electors,  who 
chose  the  town  officers,  levied  taxes,  appropriated  money,  passed 
by-laws,  and  reviewed  the  activities  of  the  various  local  officers.^ 
Counties  existed,  of  course,  in  New  England,  but  only  in  a  rudi- 
mentary form,  and  principally  for  judicial  purposes.  In  the 
middle  colonies,  notably  New  York  and  Pennsylvania,  there  was 
a  combination  of  town  and  county  local  government,  Town 
meetings  were  held  in  New  York  as  in  New  England.  As  early  as 
1 69 1,  however,  a  county  ^ard  of  supervisors^  jepreggntiiig-  t^e 
Various  towns^j^  was  created  an  d  began  to  absorb  at  once  the  most 
important  local  administrative  functions.  In  Pennsylvania, 
strong  county  administrative  organization  overshadowed  the 
town  and  furnished  the  model  for  local  government  in  a  large 
number  of  western  states.  In  the  South,  the  plantation  system 
led  to  the  formation  of  scattered  settlements,  so  that  local  gov- 
ernment had  to  be  based  upon  the  county  rather  than  the  parish. 
Thus,  for  example,  in  Virginia,  "the  county  became  the  unit 
of  representation  in  the  colonial  assembly  and  the  unit  of  miUtary, 
judicial,  highway,  and  fiscal  administration.  The  officers  were 
the  county  lieutenant,  the  sheriff^  (who  acted  as  collector  and 
treasurer) ,  justices  of  the  peace,  and  coroners.    All  were  appointed 

*  Goodnow,  Municipal  Government,  p.  176;  Readings,  p.  529.  It 
should  be  noted  that  in  New  England  the  government  of  the  urban 
centres  was  based  upon  the  rural  town-meeting  system. 

^  Local  Government,  p.  :^;i.  * 

^  For  the  minutes  of  a  Boston  town  meeting  in  1758,  see  Readings, 
p.  II,  and  compare  with  the  documents  on  a  modern  New  England  town 
meeting,  Readings,  pp.  556  ff. 


1 6  American  Government  and  Politics 

by  the  governor  of  the  colony  on  the  recommendation  of  the 
justices,  and  the  latter  thus  became  a  self-perpetuating  body 
of  aristocratic  planters  controUing  the  whole  county  adminis- 
tration." ^ 

Social  Classes  in  Colonial  Times  ^ 

In  every  colony  there  was  a  somewhat  sharp  ^ifferejitiation 
of  sodetv  into  economic  classes.  In  all  of  the  colonies  there  was 
a^HisSnct  upper  class:  the  clergy,  professional  men,  merchants, 
and  landed  proprietors  in  New  England;  the  landed  proprietors 
and  merchants  in  the  middle  colonies;  and  the  great  slave-hold- 
ing planters  in  the  South.  At  the  bottom  of  the  social  scale 
there  were  the  slaves  and  poor  whites  in  the  South,  the  mechan- 
ics, indented  servants,  and  a  few  slaves  in  the  middle  colonies 
and  New  England.  Between  these  social  groups  was  a  sub- 
stantial middle  class  of  small  farmers,  traders,  and  storekeepers. 

The  situation  in  New  York  can  best  be  described  in  the 
language  of  Mr.  Theodore  Roosevelt:  "The  colony  was  in  gov- 
ernment an  aristocratic  republic,  its  constitution  modelled  on 
that  of  England  and  similar  to  it;  the  power  lay  in  the  hands  of 
certain  old  and  wealthy  families,  Dutch  and  Enghsh,  and  there 
was  a  Hmited  freehold  suffrage.  The  great  landed  famiUes,  the 
Livingstons,  Van  Rennselaers,  Schuylers,  Van  Cortlandts,  Phil- 
lipses,  Morrises,  with  their  huge  manorial  estates,  their  riches, 
their  absolute  social  preeminence  and  their  unquestioned  political 
headship,  formed  a  proud,  pohshed,  and  powerful  aristocracy, 
deep  rooted  in  the  soil.  .  .  .  They  owned  numerous  black 
slaves,  and  lived  in  state  and  comfort  on  their  broad  acres, 
tenant-farmed,  in  the  great  roomy  manor-houses,  with  wain- 
scotted  walls  and  huge  fireplaces,  and  round  about,  the  quaint  old 
gardens,  prim  and  formal  with  their  box  hedges  and  precise 
flowerbeds.  ... 

''Next  in  importance  to  the  great  manorial  lords  came  the 
rich  merchants  of  New  York;  many  families  Hke  the  Living- 
stons, the  most  prominent  of  all,  had  representatives  in  both 
classes.  .  .  .  They  were  shrewd,  daring,  and  prosperous; 
they  were  often  their  own  ship-masters,  and  during  the  incessant 

1  Fairlie,  Local  Government,  p.  19;  for  an  illustrative  document,  see 
Readings,  p.  13. 

^  Reference,  Lodge :  English  Colonies  in  America. 


Colonial  Origins  of  American  Institutions        17 

wars  against  the  French  and  Spaniards  went  into  privateering 
ventures  with  even  more  zest  and  spirit  than  into  peaceful  trad- 
ing. Next  came  the  smaller  landed  proprietors,  who  also  pos- 
sessed considerable  local  influence;  such  was  the  family  of  the 
CHntons.  The  law,  too,  was  beginning  to  take  high  rank  as  an 
honorable  and  influential  profession  .  .  .  The  bulk  of  the  people 
were  small  farmers  in  the  country,  tradesmen  and  mechanics 
in  the  towns.  .  .  .  The  farmers  were  thrifty,  set  in  their  ways, 
and  obstinate;  the  townsmen  thrifty  also,  but  restless  and  tur- 
bulent. Both  farmers  and  townsmen  were  thoroughly  inde- 
pendent and  self-respecting,  and  were  gradually  getting  more 
and  more  poHtical  power.  .  .  .  The  habit  of  constantly  imA 
porting  indentured  Irish  servants,  as  well  as  German  laborersi 
under  contract,  prevailed  throughout  the  colonies  and  the  num- 
ber of  men  thus  imported  was  quite  sufficient  to  form  a  consider- 
able element  in  the  population,  and  to  add  a  new,  although  per- 
haps not  very  valuable,  strain  to  our  already  mixed  blood.  In 
taking  up  at  random  the  file  of  the  New  York  Gazette  for  1766,  we 
find  among  the  advertisements  many  offering  rewards  for  run- 
away servants;  such  as  'three  pounds  for  the  runaway  servant 
Conner  O'Rourke,'  'ten  pounds  for  the  runaway  Irish  servant, 
Phihp  Maginnis,'  'five  pounds  apiece  for  certain  runaway  Ger- 
man miners,  —  Bruderlein,  Baum,  Ostmann,  etc.  —  imported 
under  contract';  all  this  mixed  in  with  advertisements  of  rewards 
of  about  the  same  money  value  for  'the  mulatto  man  named 
Tom,'  or  the  *  negroes  Nero  and  Pompey.'  "  ^  ^<^ 

Political  Theory  ^  X  C 

There  is  no  reason  to  suppose  that  the  educated  and  well-to-do  >y 
colonists  were  in  any  way  discontented  with  the  fundamental 
institutions  of  government  under  which  they  lived.  At  all 
events,  we  find  no  such  Hterature  of  political  criticism  in  the  V^ 
American  colonies  on  the  eve  of  the  Revolution  as  we  find  in 
France  previous  to  the  meeting  of  the  Estates  General.  It  is 
true  that  in  Pennsylvania  some  of  the  mechanics  were  dis- 
contented with  the  way  in  which  the  propertied  classes  conducted 

*  Theodore  Roosevelt,  Gouverneur  Morris  (American  Statesmen  Series), 
pp.  14  ff. 

^  Reference  :  Merriam,  American  Political  Theories  ;  Readings,  p.  15. 
c 


1 8  American  Government  and  Politics 

the  government  of  the  city.^  It  is  true,  also,  that  there  was  some 
vague  unrest  among  the  disfranchised  of  New  York  City;  but 
generally  speaking  there  was  no  organized  protest  and  no  liter- 
ature of  protest. 

Even  the  Puritan  philosophy  of  New  England  got  the  name 
of  being  democratic  because  the  Puritans  had  resisted  royal 
y  prerogative  rather  than  because  they  entertained  "any^quaU- 
^  tarian  notions  of  democracy.  As  early  as  1631  the  people  of 
Massachusetts  provided  that  no  one  should  be  admitted  as  a 
freeman  unless  he  was  a  member  of  one  of  the  churches,  and  to 
the  very  end  a  clear  distinction  was  made  between  the  inhab- 
itants and  the  freemen  enjoying  poUtical  privileges.  J  They 
regarded  the  Bible,  interpreted  by  themselves,  as  the  foundation 
of  the  state.  "There  is  undoubtedly,"  said  John  EHot,  "a  form 
of  civil  government  instituted  by  God  himself  in  the  holy  Scrip- 
tures, whereby  any  nation  may  enjoy  all  the  ends  and  effects 
of  government  in  the  best  manner,  were  they  but  persuaded 
to  make  a  trial  of  it."  There  was  in  New  England,  especially 
in  the  rural  districts,  a  considerable  democratic  equality,  but 
nowhere  in  the  literature  of  New  England  do  we  find  any 
real  enthusiasm  for  democracy  in  the  abstract.  In  fact  John 
Cotton  in  1644  declared  that  democracy  was  "the  meanest  and 
worst  of  all  forms  of  government." 

In  a  treatise  by  John  Wise,  entitled,  A  Vindication  of  the 
Government  of  New  England  Churches,  published  in  171 7,  we 
find  the  following  enumeration  of  the  forms  of  government, 
with  a  commentary  upon  each  of  them:  ^  "(i)  a  democracy, 
which  is  when  the  sovereign  power  is  lodged  in  a  council  consist- 
ing of  all  the  members,  and  where  every  member  has  the  privi- 
lege of  a  vote.  This  form  of  government  appears  in  the  greatest 
part  of  the  world,  to  have  been  the  most  ancient.  For  that 
reason  seems  to  shew  it  to  be  most  probable,  that  when  men  had 
thoughts  of  joyning  in  a  civil  body,  would  without  question  be 
inclined  to  administer  their  common  affaires  by  their  common 
judgement,  and  so  must  necessarily  establish  a  democracy.  A 
democrac^^  thetL_^rected,  when  a  number  of  free  persons,  do 
assemble  together,  in  order  to  enter  into  a  covenant  for  uniting 

*  C.  H.  Lincoln,  The  Revolutionary  Movement  in  Pennsylvania,  1760- 
76,  University  of  Pennsylvania  Publications. 
^  Extract  slightly  condensed. 


Colonial  Origins  of  American  Institutions        19 

themselves  in  a  body.  And  to  compleat  this  state  these  con- 
ditions are  necessary:  i.  That  a  certain  time  and  place  be  as- 
signed for  assembUng.  2.  That  the  vote  of  the  majority  must 
pass  for  the  vote  of  the  whole  body.  3.  That  magistrates  be 
appointed  to  exercise  the  authority  of  the  whole  for  the  better 
dispatch  of  business,  of  everydays  occurence.  (2)  The  second 
species  of  regular  government,  is  an  aristocracy.  (3)  The  third 
species  of  a  regular  government,  is  a  monarchy.  It  is  said  of 
the  British  empire,  that  it  has  the  main  advantages  of  an  aris- 
tocracy, and  of  a  democracy,  and  yet  free  from  the  disadvantages 
and  evils  of  either.  It  is  such  a  Monarchy,  as  by  most  admirable 
temperament  affords  very  much  to  the  industry,  liberty,  and 
happiness  of  the  subject,  and  reserves  enough  for  the  majesty 
and  prerogative  of  any  king,  who  will  own  his  people  as  subjects, 
not  as  slaves.  It  is  a  kingdom,  that  of  all  kingdoms  of  the  world, 
is  most  Uke  to  the  kingdom  of  Jesus  Christ,  whose  yoke  is  easy, 
and  burden  Ught." 

Neither  did  the  colonists  entertain  modern  notions  ofj:e]^gi^"g_ 
liberty,  although  by  gradual  process  a  high  degree  of  toleration 
Ihad^een  estabUshed.  In  New  York,  for  example.  Catholics 
and  Jews  were  excluded  from  the  suffrage  by  the  terms  of  the 
law,  but  it  is  impossible  to  discover  to  what  extent  the  law  was 
actually  enforced.  In  fact,  Catholics  and  Jews  were  quite 
frequently  disfranchised.  In  Virginia  the  EstabUshed  Church 
sought  to  suppress  dissent,  and  as  late  as  1774  James  Madison 
wrote:  ''that  diabohcal,  hell-conceived  principle  of  persecution 
rages  among  some.  .  .  .  There  are  at  this  time  in  the  adjacent 
country  no  less  than  five  or  six  well  meaning  men  in  close  jail 
for  pubUshing  their  reHgious  sentiments  which  in  the  main  are 
very  orthodox."  ^ 

Experiments  in  Federation 

Although  it  was  the  Revolution  that  welded  the  thirteen 
colonies  into  the  union  which  finally  proved  permanent,  there 
had  been  three  noteworthy  attempts  at  federation  previous  to 
the  War  of  Indfil^ndence.    The  first  was  the  New  England 


^ 


^  Letters  and  Writings  of  James  Madison,  Vol.  I,  p.  12.  On  the  whole 
question  of  religious  Kberty,  ^e  S.  H.  Cobb,  The  Rise  of  Religious  Liberty 
in  America. 


20  American  Government  and  Politics 

V  Confederation  formed  among  Massachusetts  Bay,  Plymouth, 
Connecticut,  and  New  Haven  in  1643.  The  united  colonies 
of  New  England  were  bound  together  in  a  "firm  and  perpetual 
league  of  friendship  and  amity  for  offence  and  defence,  mutual 
advice  and  succor,  upon  all  just  occasions,  both  for  preserving 
and  propagating  the  truth  and  Uberties  of  the  Gospel  and  for 
their  own  mutual  safety  and  welfare."  For  some  twenty  years 
the  Confederation  was  active,  and  it  continued  to  hold  meetings 
until  1685,  but  it  left  Uttle  permanent  impress. 

The  second  attempt  at  union  was  at  Albany  in  1754,  when 
on  suggestion  of  the  Lords  of  Trade  in  England  an  intercolonial 
conference  was  held  for  the  purpose  (among  other  things)  of 
entering  into  "articles  of  Union  and  confederation  with  each 
other  for  mutual  defence  of  his  majesty's  subjects  and  interests 
in  North  America  in  time  of  peace  as  well  as  war."  Massa- 
chusetts, Connecticut,  Rhode  Island,  Pennsylvania,  New  York, 
New  Hampshire,  and  Maryland  were  represented,  and  a  com- 
mittee, with  Frankhn  in  the  lead,  reported  plans  for  union.  The 
colonists,  however,  did  not  adopt  the  scheme  because  they 
feared  that  it  would  give  the  crown  too  much  power.  The 
crown  regarded  the  plan  as  too  democratic,  and  so  the  project 
fell  through. 

The  introduction  of  the  Stamp  Tax  bill  into  Parliament  led 
several  of  the  colonies  to  protest  to  the  home  government;  and 
when  the  bill  was  passed  in  spite  of  their  objections,  the  Mas- 
sachusetts legislature  recommended  a  colonial  congress  and  ap- 
pointed representatives.  After  no  Uttle  dispute  among  the 
members  of  other  colonial  assembUes,  the  proposed  congress 
composed  of  the  representatives  of  nine  colonies  —  all  except 

♦  Virginia.  New  Hampshire,  Georgia,  and  North  Carolina  — 
convenea  in  New  York  in  1765.  Permanent  union,  however, 
was  not  their  purpose.  They  merely  formulated  an  address  to 
the  King,  a  memorial  to  the  Lords,  and  a  petition  to  Commons;  ^ 

I  and  the  repeal  of  the  Stamp  Act  put  a  stop  to  the  union  move- 
ment for  the  time.  It  required  the  patriotism  and  pressure  of 
the  long  war  to  fuse  the  colonies  into  a  nation. 

^  They  also  drafted  a  list  of  grievances. 


CHAPTER  II 

INDEPENDENCE,   UNION,   AND  SELF-GOVERNMENT 

The  American  Revolution  has  two  aspects.  On  the  one  hand^ 
it  was  a  contest  between  the  government  of  Great  Britain  and  I 
those  colonists  who  determined,  in  the  beginning  of  the  con-  I 
troversy,  to  resist  the  poHcy  of  the  mother  comitry,  and  finally  I 
to  throw  off  her  rule  altogether.  To  bring  this  contest  to  a  suc- 
cessful issue,  the  Revolutionists  formed  committees,  assemblies, 
and  national  congresses  ;  they  raised  troops,  levied  taxes,  bor- 
rowed money,  negotiated  with  foreign  powers,  and  waged  war 
in  the  field.  On  the  otheT  hand,  when  independence  was  de* 
clared,  the  Revolutionists  had  to  provide  some  form  of  united 
government  for  the  realization  of  their  common  purposes,  and^  ^ 
at  the  same  time  to  estabhsh  permanent  state  governments.'' 
Thus  cooperation  among  the  Revolutionists  of  all  the  colonies 
and  internal  reconstruction  within  each  colony  proceeded  simul-- 
taneously,  and  the  result  at  the  close  of  the  war  was  a  collection  \ 
of  "free,  sovereign,  and  independent  states'*  —  each  with  a  \ 
constitution  of  its  own  —  leagued  in  a  "perpetual  union"  under 
the  Articles  of  Confederation. 

Union  under  the  Continental  Congresses 

The  Revolution  was  the  work  of  definite  groups  of  men  co- 
operating for  specific  purposes.  In  the  preHminary  stages  of 
resistance  to  Great  Britain,  the  colonists  relied  mainly  on  their 
regular  assemblies  as  organs  for  the  expression  of  revolutionary 
opinion,  but  as  the  contest  became  more  heated  and  acts  were 
performed  for  which  there  was  no  legal  sanction,  the  Revolu- 
tionists began  to  form  independent  committees  to  represent  them. 
This  was  necessary  for  the  purposes  of  agitation,  and  later  for 
organized  rebeUion,  especially  in  those  colonies  with  royal 
governors. 

21 


22  American  Government  and  Politics 

The  germs  of  these  revolutionary  organizations  which  soon 
widened  into  state  and  national  governments  are  to  be  found  in 
the  committees  of  correspondence  —  small  groups  of  persons 
selected  by  the  Revolutionists  in  parishes,  towns,  and  counties 
for  the  purpose  of  corresponding  with  one  another,  comparing 
views,  and  finally  cooperating  in  the  great  task  of  overturning 
the  old  government  and  setting  up  a  new  system.  These  com- 
mittees began  as  local  organizations,  but  spread  so  rapidly  and 
cooperated  so  effectively  that  they  soon  gathered  sufficient  force 
.  to  accompUsh  the  work  of  the  Revolution.^ 
«/  As  early  as  November,  1772,  a  committee  of  correspondence 
was  formed  in  Boston  under  the  direction  of  Samuel  Adams ;^  it 
held  regular  meetings,  sent  emissaries  to  neighboring  towns  to 
organize  similar  bodies,  and  carried  on  a  campaign  of  popular 
education  in  opposition  to  British  colonial  poHcy. 

Early  in  the  following  year  the  Virginia  House  of  Burgesses 
appointed  a  special  committee  which  was  charged  "to  obtain 
the  most  early  and  authentic  intelligence  of  all  such  acts  and 
resolutions  of  the  British  Parliament  or  proceedings  of  adminis- 
tration as  may  relate  to  or  affect  the  British  colonies  in  America; 
and  to  keep  up  and  maintain  a  correspondence  and  communica- 
tion with  our  sister  colonies  respecting  those  important  consideru,  • 
tions;  and  the  result  of  such  their  proceedings  from  time  to  time 
to  lay  before  this  house."  This  official  example  was  speedily 
followed  by  other  legislative  assembhes,  so  that  within  about  a 
year  there  were  twelve  colonial  committees  appointed  in  regular 
form.  Imposing  as  they  seemed,  however,  they  were  by  ' 
means  as  active  and  important  as  the  unofficial  local  committees 
representing  the  Revolutionists  directly. 

These  local  committees  sprang  up  everywhere  under-  the 
direction  of  the  county  committees,  and  assumed  control  oi' 
the  revolutionary  forces.  Thus  there  was  organized  a  govern- 
ment within  a  government,  with  the  old  territorial  subdivisions 
of  the  colony  as  a  basis.  For  example,  in  New  Jersey  ta^h 
township  had  its  committee  which  chose  delegates  to  for/n  the 

^  Collins,  Committees  of  Correspondence  of  the  American  RevotjUttin, 
Annual  Report  of  the  American  Historical  Association,  1901,  Vbl.' I, 
pp.  247  fif. 

^  For  the  significant  Boston  resolution  establishing  this  comn"'<^'ee, 
see  Readings,  p.  17.  "«j^^ 


Independence,  Union,  and  Self-Government       23 

county  committee,  which  in  its  turn  selected  representatives  to 
compose  a  committee  for  the  entire  colony.  These  commit- 
tees were  powerful  organs  for  action ;  they  kept  up  the  general 
agitation ;  they  called  periodical  conventions  of  Revolutionists; 
and  indeed  assumed  the  reins  of  government. 

The  skeleton  or  framework  of  the  revolutionary  machine  was 
therefore  well  perfected  when  Samuel  Adams  in  1774  proposed  y 
in  the  Massachusetts  legislature  a  resolution  in  favor  of  calling  v 
a  congress  of  delegates  from  all  the  colonies  to  meet  at  Phila- 
delphia in  September.^  While  the  messenger  of  the  governor, 
sent  to  dissolve  the  assembly,  was  thundering  at  the  door,  the 
momentous  resolve  was  passed  and  the  call  for  united  action 
against  Great  Britain  was  issued.  The  other  colonies  except 
Georgia  responded  to  this  appeal  with  alacrity  by  selecting,  in 
some  fashion  or  another,  representatives  for  the  general  Congress. 
The  method  of  choice  varied  so  greatly  that  the  Congress  was  in 
every  way  an  irregular  and  revolutionary  body.  The  colonies 
without  the  consent  of  the  British  crown  can  scarcely  be  said  to 
have  enjoyed  the  right  of  calhng  and  organizing  such  a  congress. 
In  Massachusetts,  Rhode  Island,  and  Pennsylvania,  the  repre- 
sentatives were  chosen  informally  by  the  colonial  assembly; 

.P  in  New  Hampshire  they  were  selected  by  a  meeting  of  delegates 

'  appointed  by  the  several  towns.  In  Connecticut  they  were 
elected  by  committees  of  correspondence;  in  New  York  prac- 
tically by  the  Revolutionists  of  New  York  county;  in  New 
Jersey,  Delaware,  Maryland,  and  Virginia  by  conventions  com- 

on posed  of  county  delegates,  many  of  whom  had  been  members  of 
the  colonial  legislatures;  in  South  Carohna  by  a  "general  meet- 
ing of  the  inhabitants  of  the  colony,"  and  in  North  Carohna  by 
"a  general  meeting  of  the  deputies  of  the  province."-    In  all 

-.,  of  these  irregular  elections,  the  lead  was  taken  by  the  men  who 
had  been  most  active  in  the  organization  of  committees  of  cor- 
respondence and  the  agitation  against  Great  Britain. 
,^,  The  general  purpose  of  this  Congress,  ostensibly  at  least,  was 
stated  in  the  instructions  which  were  given  to  the  delegation  of 
each  colony  by  the  body  that  elected  it.    These  instructions 

'  This  call  is  printed  in  the  Readings,  p.  18. 
.^li.  ^The  South  Carolina  Resolution  appointing  delegates  is  in  the  Read- 
irt'":,  p.  19. 


f 


24  American  Government  and  Politics 

did  not  speak  of  union  or  independence;  perhaps  it  was  not 
thought  wise  by  the  leaders  to  announce  any  distinctly  revo- 
lutionary purpose,  even  if  they  entertained  it.  The  Massa- 
chusetts instructions  authorized  the  delegates  to  consult  upon 
the  state  of  the  colonies,  and  to  deliberate  and  determine  upon 
wise  and  proper  measures  to  be  recommended  for  the  recovery 

/and  establishment  of  their  just  rights  and  Uberties  and  the  res- 
toration of  harmony  between  Great  Britain  and  the  colonies. 
Indeed,  most  of  the  instructions  indicated  a  desire  to  see  good 
feehng  restored;  and  those  of  South  CaroUna  only  authorized 
the  delegates  to  take  "legal"  measures  to  obtain  the  repeal  of 
the  obnoxious  laws.  The  tone  of  the  colonists  was  determined, 
however,  and  North  CaroUna  instructed  her  representatives  to 
"take  such  measures  as  they  may  deem  prudent  to  effect  the 
purpose  of  describing  American  rights  with  certainty  and  guard- 
ing them  from  any  future  violation." 

As  the  whole  procedure,  strictly  speaking,  could  not  have 
been  regarded  as  legal  at  all,  the  Hmitations  imposed  on  the 

^delegates  could  not  have  had  anything  more  than  moral  force. 
The  bodies  that  chose  them  were  not  independent  and  sovereign 
states  with  law-making  powers,  but  groups  of  discontented  sub- 
jects of  Great  Britain  seeking  a  redress  of  grievances.  In 
accordance  with  the  letter  of  the  instructions,  the  Congress  con- 
tented itself  with  remonstrating  against  British  pohcy,  recom- 
mending the  colonists  to  join  in  the  non-importation  of  British 
goods,  and  adopting  other  measures  calculated  to  bring  the 
British  government  to  terms. 

This  boycott  of  British  goods  and  the  provisions  for  enforcing 
it  had  a  marked  effect  on  the  course  of  events.  It  was  agreed  by 
the  Congress  that  a  committee  should  be  chosen  in  every  county, 
city,  and  town  "by  those  who  are  quaUfied  to  vote  for  represen- 
tatives in  the  legislature,  whose  business  it  shall  be  attentively 
to  observe  the  conduct  of  all  persons  touching  this  association." 
These  local  committees  were  instructed  to  pubHsh  the  names  of 
all  citizens  who  violated  the  terms  of  the  boycott,  to  the  end  that 
all  such  foes  to  American  rights  might  be  publicly  known  and 
universally  contemned.  Thus  a  clear-cut  test  of  allegiance  to 
the  revolutionary  poHtical  system  was  provided,  and  tribunals 
competent  to  deal  with  refractory  citizens  were  authorized  to 


Independence,  Union,  and  Self-Government       25 

apply  the  test.^    The  Revolutionists,  consciously  or  not,  were 
burning  their  bridges  behind  them. 

The  first  Congress,  furthermore,  recommended  the  call  of  a  / 
second  Congress  for  the  purpose  of  continuing  the  work  thusV 
begun;  and,  acting  on  this  suggestion,  the  revolutionary  bodies 
in  the  colonies,  organized  in  the  form  of  the  old  assemblies,  or 
conventions,  or  committees,  selected  the  delegates  to  a  new 
Congress.  This  time  the  instructions  were  a  Httle  more  deter- 
mined in  tone,  and  there  was  less  talk  about  reconciliation  and 
legal  measures.  The  Massachusetts  and  New  York  instructions 
spoke  of  the  restoration  of  harmony,  but  likewise  of  the  firm  and 
secure  estabUshment  of  American  rights  and  privileges;  New 
Hampshire  gave  "full  and  ample  power  in  behalf  of  this  province 
to  consent  and  agree  to  all  measures  which  shall  be  deemed  neces- 
sary to  obtain  redress  of  American  grievances";  and  the  Con- 
necticut instructions  authorized  them  *'to  join,  consult,  and 
advise  with  other  delegates  on  proper  measures  for  advancing 
the  best  good  of  the  colonies." 

When  this  second  Congress  met  in  Philadelphia  on  Ma^  10, 
1775,  the  cause  of  Revolution  had  advanced  beyond  the  stage 
of  mere  negotiation.  Within  two  months,  Ethan  Allen's  troops 
took  Fort  Ticonderoga  "in  the  name  of  the  Great  Jehovah  and 
the  Continental  Congress,"  the  battle  of  Bunker  Hill  was  fought, 
and  Washington  was  called  to  the  command  of  the  American 
troops.  In  the  midst  of  the  crisis,  Congress  seized  and  exercised 
sovereign  powers;  it  assumed  the  direction  of  the  war;  entered  ' 
into  diplomatic  negotiations  with  other  countries;  declared  in-  ~* 
dependence,^  regulated  common  concerns;  raised  funds;  and 
finally  designed  a  firmer  national  union  in  the  form  of  the 
Articles  of  Confederation.  "  It  was  not  an  assembly  of  delegates 
formally  chosen  and  instructed  by  legally  constituted  states;  it 
was  the  central  organ,  not  of  colonies  or  of  states,  but  of  that 
portion  of  the  American  population  that  was  committed  to  the 
cause  of  Revolution. 

'  On  the  political  significance  of  the  first   Continental  Congress,   see 
C.  L.  Becker,  History  of  Political  Parties  in  the  Province  of  New  York, 
1760-76,  University  of  Wisconsin  Publications,  1909. 
•    ^For  the  Declaration  of  Independence,  see  Readings,  p.  21. 


26  American  Government  and  Politics 

Union  under  the  Articles  of  Confederation 

The  work  of  the  second  Congress  had  scarcely  opened  before 
the  boldest  of  the  leaders  began  to  urge  that  independence  was 
inevitable,  and  that  it  should  be  accompanied  by  confederation 
and  negotiations  with  foreign  powers/  As  early  as  July  21, 
1775,  the  Congress  resolved  itself  into  a  committee  of  the  whole 
to  take  into  consideration  the  state  of  America,  and  Dr.  FrankUn 
submitted  a  draft  of  a  plan  for  confederation.  Under  the  stress 
of  the  conflict  without,  Congress  was  compelled  to  postpone 
the  immediate  discussion  and  completion  of  the  union,  and  it 
was  not  until  the  summer  of  the  following  year,  June  11,  1776, 
that  a  committee  was  appointed  to  prepare  articles  of  confedera- 
tion. The  report  of  this  committee  made  about  one  month  later 
was  then  the  subject  of  intermittent  and  lengthy  debates. 

The  report  of  the  committee  to  the  effect  that,  in  determining 
all  questions,  each  colony  should  have  one  vote,  gave  rise  to  a 
spirited  discussion.  Dr.  Franklin  urged  that  if  the  smaller 
colonies  gave  equal  money  and  men  they  should  have  equal 
votes,  and  advocated  that  votes  should  be  in  proportion  to  num- 
bers. Franklin  was  supported  by  Dr.  Rush,  who  represented 
the  strong  nationalist  feeling,  and/5nade  a  national  plea  against 
the  doctrine  that  the  states  were  equal.  "It  will  tend,"  he  said, 
"to  keep  up  colonial  distinctions.  We  are  now  a  new  nation. 
Our  trade,  language,  customs,  manners  don't  differ  more  than 
they  do  in  Great  Britain.  The  more  a  man  aims  at  serving 
America,  the  more  he  serves  his  colony.  It  will  promote  factions 
in  Congress  and  in  the  States;  it  will  prevent  the  growth  of 
freedom  in  America;  we  shall  be  loth  to  admit  new  colonies  into 
the  confederation.  If  we  vote  by  numbers,  liberty  will  be  always 
safe.  .  .  .  We  are  dependent  on  each  other,  not  totally  inde- 
pendent States.  .  .  .  When  I  entered  that  door,  I  considered 
myself  a  citizen  of  America."  ^ 

The  view  of  Franklin  and  Rush  was  not  shared  by  the  ma- 
jority of  the  Congress,  however.  Mr.  Sherman  urged  that  they 
were  representatives  of  states,  not  of  individuals,  though  he 
was  willing  to  see  devised  a  system  by  which  the  states  and 

»  John  Adams,  Works,  Vol.  II,  pp.  503-510. 
^  Ibid.,  pp.  496  fif. 


Independence,  Union,  and  Self-Government       27 

individuals  should  both  be  represented.     The  Congress  at  last 
decided  that  each  state  retained  ''its  sovereign ty^reedasu—-^ 
and  independencfc^  and  every  power^.iii»fidtefei-Qa^jid  right  ^^ 
n^t  expressly  granted  to  the  United   States  in  Congress  as- 
sembled, and  provided  that  in  Congress  each  state,  regardless   / 
of  its  area,  population,  and  wealth,  should  have  one  vote.        ^^ 

Other  questions,  notably  taxation,^  were  thoroughly  con- 
sidered and  the  final  draft  approved  in  November,  1777.  On 
the  day  that  the  agreement  was  reached,  the  Articles,  accom- 
panied by  a  long  and  eloquent  letter  urging  ratification,  were 
submitted  to  the  legislatures  of  the  states.  The  framers  pointed 
out  the  difficulty  involved  in  the  formation  of  a  permanent  union 
accommodated  to  the  opinions  and  wishes  of  the  delegates  of  so 
many  states  differing  in  habits,  produce,  commerce,  and  internal 
police;  and  recommended  that  the  state  legislatures  review 
their  work  "under  a  sense  of  the  difficulty  of  combining  in  one 
general  system  the  various  sentiments  and  interests  of  a  con- 
tinent divided  into  so  many  sovereign  and  independent  com- 
munities, under  a  conviction  of  the  absolute  necessity  of  uniting 
all  our  councils  and  all  our  strength  to  maintain  and  defend  our 
common  liberties. "  ^ 

Notwithstanding  the  discouragements  of  the  war  then  in 
progress  and  the  imperative  need  for  a  closer  cooperation  to 
secure  the  independence  declared  in  1776,  the  states  were  slow 
in  ratifying  the  Articles.  It  is  true,  eleven  states  accepted  the 
plan  of  union  within  a  year,  but  of  these  New  York  added  a 
proviso  that  its  acceptance  should  not  be  binding  until  the  others 
had  agreed,  and  some  proposed  alterations  in  the  draft  sub- 
mitted. It  was  not  until  the  opening  of  1781  that  Maryland, 
which  had  so  long  abstained  from  ratification  on  account  of  the 
western  land  question,  finally  accepted  the  Articles  of  Confed- 
eration. At  noon  on  March  i  of  that  year  the  roar  of  cannon 
from  the  ships  of  war  in  the  Delaware  announced  to  the  world 
that  the  Union  "begun  by  necessity"  had  been  " indissolubly 
cemented." 

The  government  provided  by  the  Articles  of  Confederation, 
as  we  shall  see,  became  more  famous  for  its  weakness  and  short- 

>  Jefferson,  Works  (Ford  Ed.),  Vol.  I,  pp.  38  ff. 
^  Secret  Journals  of  Congress,  Vol.  I,  pp.  362  flf. 


28  American  Government  and  Politics 

comings  than  for  its  positive  achievements.^  The  management 
of  the  general  interests  of  the  United  States  was  vested  under 
the  Articles  in  a  Congress  composed  of  not  less  than  two  nor  more 
than  seven  delegates  from  each  state,  appointed  as  the  state 
legislatures  should  direct,  serving  subject  to  recall  at  any  time, 
and  meeting  annually.  In  this  Congress,  each  state  was  given 
one  vote  and  had  to  assume  the  expense  of  maintaining  its  dele- 
gates. No  president  or  permanent  executive  was  provided, 
but  Congress  was  authorized  to  appoint  a  committee  to  serve 
during  its  recesses  and  discharge  such  duties  as  might  be  in- 
trusted to  it.  No  confederate  court  was  erected,  but  Congress 
was  authorized  to  act  as  a  court  of  appeal  in  cases  of  disputes 
between  states,  or  provide  for  the  creation  of  a  special  committee 
to  try  such  causes  on  request.  With  this  government,  Hmited 
in  its  taxing  and  commercial  powers,  the  states  attempted  to 
conduct  their  common  business  for  a  period  of  eight  years  with 
results  that  made  inevitable  a  constitutional  revolution.^ 

Formation  of  State  Governments 

During  the  revolutionary  conflict  the  colonial  governments, 
regularly  estabUshed  under  the  authority  of  the  British  crown, 
broke  down  or  passed  into  the  possession  of  the  popular  party. 
From  the  royal  province,  the  governor  fled  before  the  uprising 
of  the  people,  and  with  his  departure  the  executive  and  judicial 
branches  in  their  higher  ranges  went  to  pieces.  The  New  Hamp- 
shire constitution  of  1776,  for  example,  complained  of  "the 
sudden  and  abrupt  departure  of  his  Excellency  John  Wentworth, 
Esq.,  our  late  governor,  and  several  of  the  council,  leaving  us 
destitute  of  legislation  and  no  executive  courts  being  open  to 
punish  criminal  offenders;  whereby  the  hves  and  property  of 
the  honest  people  of  this  colony  are  liable  to  the  machinations 
and  evil  designs  of  wicked  men."  The  New  Hampshire  as- 
sembly or  lower  house  thereupon  called  a  new  congress,  which 
was  duly  elected  and  assumed  the  powers  of  the  government 
which  had  been  thus  abandoned.  In  Massachusetts,  the  royal 
governor  summarily  dissolved  the  assembly,  and  finding  a  new 
election,  in  September,  1774,  resulting  in  the  return  of  even 

^  See  Readings,  pp.  25-34,  for  the  Articles  of  Confederation, 
2  See  Readings,  p.  38,  and  below,  chap.  iii. 


Independence,  Union,  and  Self-Government       29 

more  contentious  representatives,  he  annulled  the  writs  of 
election;  but  in  vain,  for  the  men  thus  chosen  met  in  spite  of 
the  governor's  orders  and  assumed  full  authority  of  government 
in  the  commonwealth.  In  Connecticut  and  Rhode  Island,  where 
there  were  no  royal  governors  to  dissolve  the  assembHes,  and 
in  the  proprietary  colonies  of  Pennsylvania  and  Delaware,  where 
such  authority  was  not  exercised  by  the  governor,  the  assemblies, 
purged  of  the  loyaHst  element,  took  charge  of  directing  the  work 
of  the  Revolution.  As  a  Pennsylvania  Revolutionist  wrote  in 
1775,  "we  must  esteem  it  a  particular  happiness  that  we  have 
a  House  of  Assembly  which  from  our  constitution  cannot  be 
dissolved  and  which  coincides  with  the  [continental]  Congress 
in  the  opposition  to  an  arbitrary  court."  ^  Whatever  the  form, 
each  colony  during  the  Revolution  had  a  legislature,  congress, 
or  convention  chosen  in  some  fashion  by  the  supporters  of  the 
American  cause.  Sometimes  the  assembly  was  elected  by  popu- 
lar vote,  royaHsts  being  excluded;  sometimes  the  members  were 
chosen  by  local  meetings  of  Revolutionists;  and  sometimes 
by  town  authorities.  These  provisional  assemblies  seized  on 
all  the  powers  of  government  in  their  respective  jurisdictions, 
made  laws,  levied  taxes,  raised  troops,  and  directed  the  Revo- 
lution. 

For  a  few  months  at  the  opening  of  the  contest  with  the  mother 
country,  while  the  future  was  uncertain  and  return  to  the  old 
allegiance  was  not  impossible,  the  colonists  were  at  a  loss  to 
determine  on  just  the  form  of  government  required  by  the 
situation.  Under  these  circumstances,  the  provincial  conven- 
tion of  Massachusetts,  then  serving  as  the  provisional  govern- 
ment of  that  colony,  applied  to  the  Congress  at  Philadelphia  in 
May,  1775,  for  expHcit  instructions  concerning  the  organization 
of  a  more  regular  government.  To  this  request.  Congress  re- 
plied advising  the  convention  that  it  was  not  bound  by  the  late 
act  of  ParUament  altering  the  charter  of  Massachusetts,  and 
requesting  it  to  ask  the  towns  entitled  to  representation  to 
choose  their  regular  delegates  to  a  new  assembly  which  should 
act  as  the  government  until  a  royal  governor  could  be  secured 
pho  would  obey  the  terms  of  the  charter.  The  convention 
tpmplied  with  this  advice,  and  thus  instituted  a  government 


'  Force,  American  Archives,  Fourth  Series,  Vol.  Ill,  p.  1410. 


30  American  Government  and  Politics 

which  remained  in  power  until  1780,  when  the  state  constitution 
was  put  into  force. 

The  action  of  Massachusetts  was  followed  in  the  autumn  of 
that  year  (1775)  by  appHcations  from  New  Hampshire,  Virginia, 
and  South  CaroHna  for  instructions,  to  which  the  Congress  replied 
advising  them  to  "  call  a  full  and  free  representation  of  the  people, 
in  order  to  form  such  a  form  of  government  as,  in  their  judgment, 
would  best  promote  the  happiness  of  the  people  and  most  effect- 
ually secure  peace  and  good  order  in  their  provinces  during  the 
continuance  of  the  dispute  with  Great  Britain," 

In  response  to  this  advice,  the  temporary  provincial  conven- 
tion in  New  Hampshire  ordered  a  general  election  of  delegates 
to  a  new  convention  empowered  to  assume  the  government  under 
the  direction  of  Congress  for  one  year,  and  this  new  convention, 
as  soon  as  it  met,  drew  up  a  form  of  government  to  "continue 
during  the  present  unhappy  and  unnatural  contest  with  Great 
Britain."  Declaring  that  they  would  rejoice  in  reconciUation 
with  the  mother  country,  they  nevertheless  committed  themselves 
to  the  care  of  the  Continental  Congress  in  whose  wisdom  and 
prudence  they  confided.  This  brief  and  fragmentary  instru- 
iment,  drawn  up  by  men  who  could  not  foretell  the  outcome  of 
■the  conflict  then  raging  around  them,  remained  the  constitu- 
*tion  of  New  Hampshire  until  after  the  estabhshment  of  peace, 
when  it  was  replaced  by  the  new  and  more  elaborate  instru- 
ment of  1784.  South  Carolina  likewise  followed  the  suggestion 
of  Congress  and  drew  up,  in  March,  1776,  a  constitution 
designed  to  serve  until  ''an  accommodation  of  the  unhappy 
differences  between  Great  Britain  and  America"  could  be  ob- 
tained. Neither  of  these  instruments  was  submitted  for  popu- 
lar ratification,  and  neither  was  a  state  constitution,  properly 
speaking,  for  both  contemplated  a  possible  return  to  the  former 
allegiance. 

At  length,  in  May,  1776,  about  two  months  before  the  formal 
Declaration  of  Independence,  Congress,  aware  that  such  a  step 
was  inevitable,  issued  a  general  recommendation  "to  the  respec- 
tive assemblies  and  conventions  of  the  United  Colonies,  where 
no  government  sufficient  to  the  exigencies  of  their  aff air'^  '  "w" 
been  hitherto  established,  to  adopt  such  government  as  s'  ci^ 
the  opinion  of  the  representatives  of  the  people  best  c 
to  the  happiness  and  safety  of  their  constituents  in  pa 


Independence,  Union,  and  Self-Government       31 

and  America  in  general."  ^  This  recommendation  met  with 
general  approval  among  the  Revolutionists,  and  before  the  ex- 
piration of  a  year  Virginia,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Georgia,  and  New  York  had  drafted  new  instruments 
of  government  as^  states,  not  as  colonies  uncertain  of  their  des- 
tiny. Though  Virginia  and  New  Jersey  completed  their  con- 
stitutions before  the  Fourth  of  July,  they  declared  the  dominion 
of  Great  Britain  at  an  end.  Virginia  simply  repudiated  the 
authority  of  George  III,  and  New  Jersey  expressly  said  in  the 
written  instrument  that  "all  civil  authority  under  him  is  neces- 
sarily at  an  end."  Connecticut  and  Rhode  Island,  deeming  the 
government  they  possessed  under  their  ancient  charters  sufficient 
for  their  needs,  drew  up  no  new  instruments,  but  merely  renounced 
their  allegiance  to  George  III  and  continued  their  old  systems 
without  any  structural  change.  South  Carolina,  in  view  of  the 
temporary  character  of  the  document  drafted  in  1776,  drew  up  a 
new  and  more  complete  constitution  in  1778,  and  Massachu- 
setts, with  more  deHberation,  put  into  effect  in  1780  a  constitu- 
tion which  in  its  fundamental  principles  remains  unchanged 
to-day  —  the  original  instrument  having  never  been  reorgan- 
ized. Thus  the  transition  from  colonies  to  states  was  completed,!, 
but  in  no  instance  was  the  issue  submitted  to  popular  approval Ih 
at  the  polls.  r 

So  irregular  were  the  methods  pursued  by  the  Revolutionists 
of  the  various  states  in  drawing  up  their  constitutions  that  it  is 
well-nigh  impossible  to  make  any  general  statement  true  of  all 
of  them,  except  that  Delaware  and  Massachusetts  were  the  only 
states  that  had  their  constitutions  framed  by  regularly  organized' 
conventions  summoned  for  that  special  purpose  and  confining 
their  activities  to  the  single  function  of  framing  an  instrument 
of  government.  In  all  of  the  other  colonies,  the  bodies  that 
drafted  the  constitutions  were  primarily  engaged  in  the  main- 
tenance of  orderly  government  during  the  crisis  and  in  meeting 
the  demands  which  fell  upon  them  through  the  exigencies  of 
war. 

The  procedure,  however,  may  be  illustrated  by  the  events  in 
Pennsylvania.  There  the  "  Committee  of  the  City  and  Liber- 
ties of  Philadelphia,"  a  revolutionary  and  voluntary  body,  in  pur- 

^  Readings,  p.  35. 


32  American  Government  and  Politics 

pursuance  of  the  advice  of  Congress  given  in  May,  1776,  de- 
spatched to  the  county  committees  circular  letters  asking  the 
appointment  of  delegates  to  a  provincial  conference.  In  response 
to  this  call,  the  convention,  composed  of  ninety-seven  members, 
assembled  in  the  city  of  Philadelphia  on  June  18,  and  after  due 
deUberation  decided  that  a  special  convention  should  be  called 
for  the  purpose  of  drafting  the  constitution,  and  that  it  should 
be  composed  of  eight  representatives  from  the  city  of  Phila- 
delphia and  each  of  the  counties. 

In  spite  of  their  declaration  that  all  authority  came  from  the 
people,  the  preHminary  conference  at  Philadelphia  had  no  inten- 
tion of  admitting  all  of  the  people  to  a  vote  in  the  election  of  the 
delegates  to  the  coming  constitutional  convention.  On  the  con- 
trary they  expressly  excluded  such  as  were  not  county  or  provin- 
cial tax-payers,  those  who  would  not  take  an  oath  to  support 
the  Revolutionary  cause,  and  those  who  had  been  published  by 
the  committee  of  public  safety  as  enemies  to  the  liberties  of  Amer- 
ica. What  proportion  of  the  adult  males  the  voters,  under 
these  strict  hmitations,  actually  composed,  it  is  impossible  to 
determine,  but  it  is  safe  to  assume  that  the  work  of  transforming 
the  colony  into  a  state  was  accomplished  by  an  energetic  minor- 
!  ity.  Moreover,  the  constitution  which  the  new  convention  com- 
pleted in  September,  1776,  was  not  submitted  to  the  people  for 
popular  ratification. 

A  somewhat  similar  process  was  followed  in  Maryland,^  where 
the  provisional  revolutionary  congress,  on  receipt  of  the  instruc- 
tions of  Congress,  resolved  that  "A  new  convention  be  elected 
for  the  express  purpose  of  forming  a  new  government  by  the  au- 
thority of  the  people  only  and  enacting  and  ordering  all  things  for 
the  preservation,  safety,  and  general  welfare  of  this  colony." 
The  call  for  the  election  of  the  new  convention,  in  addition  to 
excluding  the  "enemies  of  the  liberties  of  America,"  placed 
restrictions  on  the  suffrage  as  follows:  "All  freemen  above 
twenty-one  years  of  age,  being  freeholders  of  not  less  than^fifty 
acres  of  land  or  having  visible  property  in  this  colony  to  the 
value  of  £40  sterHng  at  least,  and  no  others  be  admitted  to  vote 
for  representatives  to  serve  in  the  said  convention  for  the  said 
counties  and  districts,  and  the  town  of  Baltimore  aforesaid; 

*  See  Readings,  p.  36. 


Independence,  Union,  and  Self-Government       33 

and  that  all  freemen  above  twenty-one  years  of  age,  owning  a 
whole  lot  of  land  in  the  said  city  of  Annapolis,  or  having  a  visible 
estate  of  £20  sterling  at  the  least  within  this  province  or  having 
served  five  years  to  any  trade  within  the  said  city  and  being  a 
housekeeper,  and  no  others  be  admitted  to  vote  for  representa- 
tives to  serve  in  the  said  convention  for  the  said  city."  The 
constitution  drafted  by  the  convention  elected  by  these  voters 
was  not  submitted  for  ratification  on  its  completion  in  Novem- 
ber, 1776. 

Thus  America  came  out  of  the  Revolution  a  union  of  thirteen  ; 
states,  loosely  bound  together  under  the  Articles  of  Confedera-/ 
tion.     Each  state,  except  Rhode  Island  and  Connecticut  which  >^ 
continued  their  colonial  charters,  had  a  new  written  constitu-  1 
tion  based  for  practical  purposes  upon  the  precedents  which  had 
been  established  during  colonial  times.     Seven  years  of  war. 
and  the  overthrow  of  British  dominion  had  left  the  social  order/ 
essentially  unchanged. 


CHAPTER  III 

THE   ESTABLISHMENT  OF   THE   FEDERAL  CONSTITUTION 

Quite  naturally  the  men  who  led  in  stirring  up  the  revolt 
against  Great  Britain  and  in  keeping  the  fighting  temper  of  the 
Revolutionists  at  the  proper  heat  were  the  boldest  and  most 
radical   thinkers  —  men  like   Samuel  Adams,   Thomas   Paine, 
Patrick  Henry,  and  Thomas  Jefferson.     They  were  not,  generally 
speaking,  men  of  large  property  interests  or  of  much  practical 
business  experience.     In  a  time  of  disorder,  they  could  consist- 
ently lay  more  stress  upon  personal  liberty  than  upon  social 
control;  and  they  pushed  to  the  extreme  Hmits  those  doctrines 
of  individual  rights  which  had  been. evolved  in  England  during 
the  struggles  of  the  small  landed  proprietors  and   commercial 
I  classes  against  royal  prerogative,  and  which  corresponded  to  the 
jeconomic  conditions  prevaihng  in  America  at  the  close  of   the 
•eighteenth  century.  CThey  associated   strong  government  with 
monarchy,  and  came  to  beheve  that  the  best  political  system  was 
^'    one  which  governed  least.j  A  majority  of  the  radicals  viewed  all 
government,  especially  if  highly  centraHzed,  as  a  species  of  evil, 
tolerable  only  because  necessary  and  always  to  be  kept   down 
to  an  irreducible  minimum  by  a   jealous  vigilance.  (Jefferson 
I  put  the  doctrine  in  concrete  form  when  he  declared  that  he  pre- 
iferred  newspapers  without  government  to   government  without 
Inewspapers.  J^The  Declaration  of  Independence,  the  first  state 
•constitutions,  and  the  Articles  of  Confederation  bore  the  impress 
of  this  philosophy.    In  their  anxiety  to  defend  the  individual 
against  government  interference  and  to  preserve  to  the  states 

1a  large  sphere  of  local  autonomy,  these  Revolutionists  had  set 
up  a  system  too  weak  to  achieve  even  the  primary  objects  of 
government;  namely,  national  defence,  the  protection  of  property, 
and  the  advancement^ of  commerce.  They  were  not  unaware 
of  the  character  of  their  handiwork,  ^ut  many  believed  with 
Jefferson  that  "man  was  a  rational  animal  endowed  by  nature 
with  rights  and  with  an  innate  sense  of  justice  and  that  he  could 

34  i 


The  Establishment  of  the  Federal  Constitution     35 

be  restrained  from  wrong  and  protected  in  right  by  moderate 
powers  confided  to  persons  of  his  own  choice. 'j  ^  Occasional 
riots  and  disorders,  they  held,  were  preferable  to  too  much 
government. 

The  new  American  poUtical  system  based  on  these  doctrines 
had  scarcely  gone  into  effect  before  it  began  to  incur  opposition 
from  many  sources.     The  close  of  the  Revolutionary  struggle 
removed  the  prime  cause  for  radical  agitation  and  brought  a  new 
group  of  thinkers  into  prominence,    ^hen  independence  had 
been  gained,  the  practical  work  to  be  done  was  the  maintenanc^ 
of  social  order,  the  payment  of  the  pubHc  debt,  the  provision! 
of  a  sound  financial  system,  and  the  estabUshment  of  conditions! 
favorable  to  the  development  of  the  economic  resources  of  the 
new  country./  The  men  who  were  principally  concerned  in  this 
work  of  peaceful  enterprise  were  not  the  philosophers,  but  men 
of  business  and  property  and  the  holders  of  public  securities  —     P 
''a  strong  and  intelligent  class  possessed  of  unity  and  informed 
by  a  conscious  solidarity  of  interests."  ^  (For  the  most  part  they 
had  had  no  quarrel  with  the  system  of  class  rule  and  the  strong 
centralization   of  government   which  existed  in   England.     It  . 
was  on  the  question  of  policyjjiot  of  governmental  structure,  that  I 
they  had  broken  with  the  Briti^^utFonties.  "JBy  no  means  all 
of  them,  in  fact,  had   even  resisted  the  policy  of  the  mother  I 
country,  for  within  the  ranks  of  the  conservatives  were  large 
numbers  offLoyahsts  who  had  remained  in  America,  and,  as  was 
to  have  been  expected,  cherished  a_  hitter  feeling  ag^JTist   the 
Revolutionists,  especially  the  radical  section  which  had  been 
boldest  in   denouncing  the   EngHsh   system  root  and  branch? 
In  other  words,  after  the  heat  and  excitenlent  of   the  War  of 
Independence  were  over  and  the  new  government,  state  and ; 
national,   was   tested   by  the   ordinary  experiences   of  traders,  ^ 
financiers,  and  manufacturers,  it  was  found  inadequate,  andj 
these  groups  accordingly  grew  more  and  more  determined  toj 
reconstruct  the  political  system  in  such  a  fashion  as  to  make  it  I 
subserve  their  permanent  interests. 

'  Readings,  p.  93.  ^  Wilson,  Division  and  Reunion,  p.  12. 


36  American  Government  and  Politics 

Reasons  for  the  Failure  of  the  Articles  of  Confederation  * 

To  understand  the  seriousness  of  the  situation  for  this  influ- 
ential portion  of  the  population,  it  is  necessary  to  examine  some- 
what closely  the  precise  ways  in  which  the  confederate  system; 
failed  to  afford  adequate  guarantees  to  property  and  commerce. 
I.  The  most  obvious  defect  of  the  government  under  the. 
Articles  was  its  inability  to  pay  even  the  interest  on  the  publicly 
debt,  most  of  which  had  been  incurred  in  support  of  the  war. 
In  spite  of  the  most  heroic  efforts,  the  arrears  on  that  portion  of 
the  debt  held  by  American  citizens  increased  within  five  years 
(1784-89)  from  $3,109,000  to  $11,493,858,  and  at  the  same 
time  the  arrears  on  the  foreign  debt  multiplied  about  twenty-five 
fold.  In  short,  a  large  group  of  public  creditors  were  failing  to 
receive  the  interest  due  them  on  government  securities.  It 
would  have  been  exercising  almost  superhuman  faculties  for  them 
to  have  quietly  acquiesced  in  the  indefinite  continuance  of  such 
a  government  and  such  a  policy. 

Indeed,  the  system  of  raising  money  provided  by  the  Articles 
of  Confederation  was  so  constructed  as  to  give  them  no  hope 
that,  during  its  continuance,  the  long-delayed  payments  could 
ever  be  effected.     The  confederate  Congress  had  no  immediate 
<*^jt.axing  power:  all  charges  of  war  and  all  other  expenses  were  to 
be  defrayed  out  of  a  common  treasury  supplied  through  levies 
made  by  the  legislatures  of  the  several  states  in  proportion  to  the 
value  of  the  land  within  each  state.     Limited  to  one  form  of 
taxation  ^  —  direct  taxation  by  quotas  at  that  —  and  dependent 
upon  the  will  of  the^^jLate  legislatures  for  all  payments,  the  con- 
federate Congress  really  could  do  nothing  but  recommend  con- 
tributions, and  was  in  fact  compelled  to  beg  from  door  to  door 
only  to  meet  continued  rebuffs,  and  to  sink  deeper  and  deeper 
in  debt  from  year  to  year. 
I      Not  only  was  the  Congress  thus  limited  in  its  resources  to 
I  quotas  imposed  on  the  states;   the  very  principle  of  apportion- 
Iment  according  to  the  value  of  lands,  buildings,  andimprove- 

^  For  Madison's  concise  summary,  see  Readings,  p.  38.  J 

2  This  tax,  it  will  be  noted,  fell  principally  on  the  freeholders;   and  a|| 
they  constituted  the  major  portion  of  the  voting  population  of  each  state, 
it  is  easy  to  see  why  the  state  legislatures  were  remiss  in  paying  their 
respective  quotas  into  the  common  treasury. 


I 


The  Establishment  of  the  Federal  Constitution     -t^"] 

ments  was  itself  unjust  as  measured  by  the  prevailing  doctrines 
of  taxation.  "The  wealth  of  nations,"  it  was  urged  in  The 
Federalist,  "depends  upon  an  infinite  variety  of  causes.  .  .  . 
There  can  be  no  common  measure  of  national  wealth,  and,  of 
course,  no  general  or  stationary  rule  by  which  the  ability  of  a 
state  to  pay  taxes  can  be  determined.  The  attempt,  therefore, 
to  regulate  the  contributions  of  the  members  of  the  confederacy 
by  any  such  rule  cannot  fail  to  be  productive  of  glaring  inequality 
and  extreme  oppression.  This  inequality  would  of  itself  be 
sufficient  in  America  to  work  the  eventual  destruction  of  the 
Union,  if  any  mode  of  enforcing  comphance  with  its  requisitions 
could  be  devised."  ^ 

This  objection  that  the  system  of  taxation  was  unjust  only 
added  a  welcome  sanction  to  the  natural  dislike  of  states  to  pay 
direct  contributions  in  a  lump  sum  to  a  distant  central  govern- 
ment —  a  dislike  which  Bismarck  discovered  long  afterward  in 
his  experience  with  the  matricular  contributions  in  the  German 
Empire.  ( Consequently  the  states  of  the  Union  vied  with  each 
other  in  delaying  the  payments  of  their  quotas  into  the  common 
treasury.\  As  the  modern  holder  of  personal  property  pleads 
the  evasions  of  others  as  a  justification  for  not  paying  taxes  onJ 
the  full  valuation  of  his  own  property,  so  each  backward  statej 
pleaded  the  delays  of  other  states,  and  hesitated  to  pay  even 
when  it  could,  on  the  ground  that  it  might  contribute  more  than 
its  share.  During  a  period  of  about  four  years,  from  November 
II,  1 781,  to  January  i,  1786,  Congress  laid  on  the  states  more 
than  $10,000,000  in  requisitions,  and  received  in  payment  less 
than  one-fourth  of  the  amount  demanded.  During  the  fourteen 
months  preceding  the  formation  of  the  new  federal  Constitution 
less  than  half  a  million  was  paid  into  the  confederate  treasury  I 
—  not  enough  to  pay  the  interest  on  the  foreign  debt  alone.' 
Had  it  not  been  for  the  loans  which  the  bankers  of  Holland  were 
willing  to  make  to  the  struggUng  republic,  the  confederacy  would 
surely  have  been  confronted  by  bankruptcy  and  total  ruin  before 
relief  came.    | 

2.  The  dis'satisf action  of  the  financial  interests  was  morcii 
than  equalled  by  the  dissatisfaction  of  traders  and  manufacturers,^ 
both  in  America  and  Europe,  with  the  unbusiness-like  character 

»  The  Federalist,  No.  XXI. 


[ 


38  American  Government  and  Politics 

of  the  confederate  Congress.  It  is  true  that  the  Congress  could 
regulate  foreign  commerce  by  making  treaties  with  foreign  powers 
and  that  the  states  were  forbidden  to  lay  any  imposts  or  duties 
which  might  interfere  with  certain  of  these  agreements,  but  in 
practice  the  confederate  government  was  unable  to  enforce 
treaty  stipulations  on  the  unwilling  states  that  insisted  on  regu- 
lating commerce  in  their  own  way.  The  states  bid  against  one 
another  for  trade;  they  laid  duties  on  goods  passing  through  their 
limits,  thus  stirring  up  strife  among  themselves;  and,  what  was 
no  less  disastrous,  they  lost  the  advantages  which  a  reasonable 
degree  of  cooperation  would  have  gained.^ 

The  disordered  state  of  American  commerce  under  the  Articles 
of  Confederation  can  best  be  described  in  the  felicitous  language 
of  John  Fiske:  "The  different  states,  with  their  different  tariff 
and  tonnage  acts,  began  to  make  commercial  war  upon  one 
another.  No  sooner  had  the  other  three  New  England  states 
virtually  closed  their  ports  to  British  shipping  than  Connecticut 
threw  hers  wide  open,  an  act  which  she  followed  up  by  laying 
duties  upon  imports  from  Massachusetts.  Pennsylvania  dis- 
criminated against  Delaware,  and  New  Jersey,  pillaged  at  once 
by  both  her  greater  neighbors,  was  compared  to  a  cask  tapped  at 
both  ends.  The  conduct  of  New  York  became  especially  selfish 
and  blameworthy.  ...  Of  all  the  thirteen  states,  none  behaved 
worse  except  Rhode  Island. 

"A  single  instance,  which  occurred  early  in  1787,  may  serve 
as  an  illustration.  The  city  of  New  York  had  long  been  supplied 
with  firewood  from  Connecticut^  and  with  butter  and  cheese, 
chickens  and  garden  vegetables,  from  the  thrifty  farms  of  New 
Jersey.  This  trade,  it  was  observed,  carried  thousands  of  dollars 
out  of  the  city  and  into  the  pockets  of  detested  Yankees  and 
despised  Jerseymen.  It  was  ruinous  to  domestic  industry, 
said  the  men  of  New  York.  .  .  .     Acts  were  accordingly  passed, 

^  "  No  nation  acquainted  with  the  nature  of  our  political  system," 
declared  Hamilton  in  No.  XXII  of  The  Federalist,  "would  be  unwise 
enough  to  enter  into  stipulations  with  the  United  States,  conceding  on 
their  part  privileges  of  importance,  while  they  were  apprised  that  en- 
gagements on  the  part  of  the  union  might  at  any  moment  be  violated  by 
its  members;  and  while  they  found  from  experience  that  they  might  enjoy 
every  advantage  they  desired  in  our  markets  without  granting  us  any  in 
return,  but  such  as  momentary  convenience  might  suggest." 


The  Establishment  of  the  Federal  Constitution     39 

obliging  every  Yankee  sloop  which  came  down  through  Hell 
Gate,  and  every  Jersey  market  boat  which  was  rowed  across 
from  Paulus  Hook  to  Cortlandt  Street,  to  pay  entrance  fees  and 
obtain  clearances  at  the  custom-house,  just  as  was  done  by  ships 
from  London  or  Hamburg;  and  not  a  cartload  of  Connecticut 
j&rewood  could  be  delivered  at  the  back  door  of  a  country  house 
in  Beekman  Street  until  it  should  have  paid  a  heavy  duty.  .  .  . 
The  New  Jersey  legislature  made  up  its  mind  to  retaUate.  The 
city  of  New  York  had  lately  bought  a  small  patch  of  ground  on 
Sandy  Hook,  and  had  built  a  Hghthouse  there.  .  .  .  New 
Jersey  gave  vent  to  her  indignation  by  laying  a  tax  of  $1800  a 
year  on  it.  Connecticut  was  equally  prompt.  At  a  great  meet- 
ing of  business  men,  held  at  New  London,  it  was  unanimously 
agreed  to  suspend  all  commercial  intercourse  with  New  York. 
Every  merchant  signed  an  agreement,  under  penalty  of  $250 
for  the  first  offence,  not  to  send  any  goods  whatever  into  the 
hated  state  for  a  period  of  twelve  months."  ^ 

3.  The  monetary  system  under  the  Articles  of  Confederation 
was  even  in  worse  confusion,  if  possible,  than  commerce.  During 
the  Revolution,  Congress  had  created  an  enormous  amount  of 
paper  money  which  so  speedily  declined  in  value  that  in  1780 
one  paper  dollar  was  worth  less  than  two  cents  in  specie.  It 
took  eleven  dollars  of  this  money  to  buy  a  pound  of  brown  sugar 
in  Virginia;  seventy-five  dollars  for  a  yard  of  linen;  and  one 
hundred  dollars  for  a  pound  of  tea.  Jefferson  records  that  he 
paid  his  physician  $3000  for  two  calls  in  1781,  and  gave  $355.50 
for  three  quarts  of  brandy.  (After  the  Revolution,  the  great 
majority  of  states  continued  to  issue  paper  money  without  any 
currency  basis. )  In  Rhode  Island  a  most  extraordinary  conflict 
occurred  over  the  control  of  the  monetary  system.  The  farmers, 
being  in  a  majority,  secured  the  passage  of  a  law  authorizing  the 
issuance  of  money  to  themselves  on  the  basis  of  mortgages  against 
their  farms.  The  merchants  refused  to  accept  this  paper,  and 
it  promptly  declined  to  about  one-sixth  of  its  nominal  value. 
Heavy  penalties  then  were  placed  upon  those  who  would  not 
accept  it,  but  without  avail.  Merchants  closed  their  shops 
rather  than  yield,  and  farmers  refused  to  bring  produce  to  town 
in  the  hope  of  starving  the  merchants  out.     In  nearly  every 

'J.  Fiske,  The  Critical  Period  of  American  History,  pp.  144-147. 


40  American  Government  and  Politics 

state  determined  efforts  were  made  to  force  creditors  to  accept 
depreciated  paper  in  payment  of  lawful  debts./  It  is  small  won- 
der, therefore,  that  the  framers  of  the  federal  Constitution  in- 
serted clauses  in  that  instrument  forbidding  states  to  emit  bills 
of  credit,  make  anything  but  gold  and  silver  coin  a  legal  tender 
in  payment  of  debts,  or  pass  any  law  impairing  the  obligation  of 
contracts.|  It  is  small  wonder  also  that  merchants  and  creditors 
everywhere  welcomed  this  measure  of  relief  when  the  new  Con- 
stitution was  laid  before  them  for  ratification. 

4.  Shays'  rebellion  in  Massachusetts  showed  that  grave  dangers 
to  pubUc  order  might  arise  in  any  state  and  that  the  duly  con- 
stituted authorities  might  be  overthrown  by  violence  if  no 
assistance  could  be  secured  from  neighboring  states  or  the  fed- 
eral authority.  The  heavy  public  debt  in  Massachusetts  had 
necessitated  heavy  taxes,  and  the  attempt  of  creditors  to  recover 
debts  due  them  added  to  popular  discontent.  "A  levelUng, 
Hcentious  spirit,"  says  Mr.  Curtis,  "a  restless  desire  for  change, 
and  a  disposition  to  throw  down  the  barriers  of  private  rights,  at 
length  broke  forth  in  conventions,  which  first  voted  themselves 
to  be  the  people  and  Ishen  declared  their  proceedings  to  be  con- 
stitutional.    At   these    assembhes   the    doctrine   was   publicly 

.  broached  that  property  ought  to  be  common,  because  all  had 
^  aided  in  saving  it  from  confiscation  by  the  power  of  England. 
Taxes  were  voted  to  be  unnecessary  burdens,  the  courts  of  jus- 
tice to  be  intolerable  grievances,  and  the  legal  profession  a  nui- 
sance. A  revision  of  the  [state]  constitution  was  demanded,  in 
order  to  abolish  the  Senate,  reform  the  representation  of  the 
people,  and  make  all  the  civil  officers  eligible  by  the  people.  .  .  . 
Had  the  government  of  the  state  been  in  the  hands  of  a  person 
less  firm  and  less  careless  of  popularity  than  Bowdoin  it  would 
have  been  given  up  to  anarchy  and  civil  confusion."  ^ 

5.  The  impotence  which  characterized  the  confederate  gov- 
ernment in  enforcing  measures  of  taxation  and  commercial 
treaties  against  recalcitrant  states  extended  throughout  the  whole 
domain   of   its   nominal   authority.     It  was  dependent  almost 

i  wholly  upon  the  states  for  the  enforcement  of  its  laws,  and  yet  it 
had  no  express  power  to  exact  obedience  from  them  or  to  punish 
them  by  pecuniary  penalties  or  suspension  of  privileges.     Who- 

*  Constitutional  History  of  (he  United  States,  Vol.  I,  p.  181. 


The  Establishment  of  the  Federal  Constitution     41 

ever  argued  that  such  a  right  was  necessarily  inherent  in  every 
government  was  met  by  the  contention  that  the  Articles  them- 
selves provided  "that  each  state  retained  every  power,  juris- 
diction, and  right  not  expressly  delegated  to  the  United  States  in 
Congress  assembled."  Indeed,  as  Madison  afterwards  pointed 
out  in  the  convention  at  Philadelphia,  "  the  use  of  force  against 
a  state  would  look  more  Hke  a  declaration  of  war  than  an  inflic- 
tion of  punishment  and  would  probably  be  considered  by  the 
party  attacked  as  a  dissolution  of  all  previous  compacts  by  which 
it  might  be  bound."  *  Thus  was  afforded  "the  extraordinary 
spectacle  of  a  government  destitute  even  of  a  shadow  of  a  con- 
stitution^:!,  power  to  enforce  the  execution  of  its  own  laws."  - 

6.  This  reduction  of  the  confederate  government's  power  to 
a  shadow  was  the  logical  result  of  what  Hamilton  regarded  as  the 
great  and  radical  vice  of  the  Articles  of  Confederation;  namely, 
the  principle  of  legislation  for  states  in  their  collective  or  corpo-^ 
rate  capacity  as  distinguished  from  the  individuals  of  which  they 
were  composed.^  Subject  to  the  rule  of  apportionment,  Con- 
gress could  demand  an  unlimited  supply  of  money  and  men  from 
the  states,  but  in  both  these  important  ftiatters,  upon  which,  in 
final  analysis,  the  foundations  of  all  government  rest,  Congress 
could  bring  no  pressure  to  bear  upon  any  individual.  It  was 
practically  restricted  to  transactions  with  states  —  corporate 
entities  —  represented  by  transient  and  often  hostile  legislatures, 
so  that  the  complete  enforcement  of  any  measure  of  taxation 
required  the  concurrence  of  thirteen  different  bodies  —  a  con- 
juncture which  was  well-nigh  impossible  to  secure  in  practice. 
For  the  purpose  of  safeguarding  and  advancing  the  interests  of 
a  nation  with  such  vast  natural  resources  at  its  command,  a 
more  inadequate  instrument  could  scarcely  be  imagined;  and  the 
gravity  of  the  situation  was  all  the  more  serious  because  the 
Articles  required  the  consent  of  every  state  to  the  slightest  amend- 
ment. It  was  not  merely  the  Confederation  that  failed  —  the 
entire  system,  state  and  national,  did  not  correspond  to  the  real 
and  permanent  interests  of  that  portion  of  the  population  who 
by  reason  of  their  property  and  intelligence  possessed  both  the 
will  and  the  capacity  for  concerted  action  on  a  scale  large  enough 

»  Elliot's  Debates,  Vol.  V,  p.  140.  ^  The  Federalist,  No.  XXI. 

3  lUd.,  No.  XV. 


42  American  Government  and  Politics 

to  overthrow  the  confederate  government  and  set  up  an  adequate 
system  of  union  in  its  stead. 

The  Movement  for  Constitutional  Revision 

The  Congress  of  the  Confederation  was  not  long  in  discovering 
the  true  character  of  the  futile  authority  which  the  Articles  had 
conferred  upon  it.  The  necessity  for  new  sources  of  revenue 
became  apparent  even  while  the  struggle  for  independence  was 
yet  undecided,  and,  in  1781,  Congress  carried  a  resolution  to  the^  ] 
effect  that  it  should  be  authorized  to  lay  a  duty  of  five  per  cent 
on  certain  goods.  This  moderate  proposition  was  defeated 
because  Rhode  Island  rejected  it  on  the  grounds  that  "she 
regarded  it  the  most  precious  jewel  of  sovereignty  that  no  state 
shall  be  called  upon  to  open  its  purse  but  by  the  authority  of 
the  state  and  by  her  own  officers."  Two  years  later  Congress/^  ) 
prepared  another  amendment  to  the  Articles  providing  for  cer- 
tain  import  duties,  the  receipts  from  which,  collected  by  state 
officers,  were  to  be  applied  to  the  payment  of  the  public  debt; 
but  three  years  after  the  introduction  of  the  measure,  four  states, 
including  New  York,  still  held  out  against  its  ratification,  and 
the  project  was  allowed  to  drop.  At  last,  in  1786,  Congress  in  ' 
a  resolution  declared  that  the  requisitions  for  the  last  eight  years 
had  been  so  irregular  in  their  operation,  so  uncertain  in  their 
collection,  and  so  evidently  unproductive,  that  a  reliance  on  them 
in  the  future  would  be  no  less  dishonorable  to  the  understandings 
of  those  who  entertained  it  than  it  would  be  dangerous  to  the  wel- 
fare and  peace  of  the  Union.  Congress,  thereupon,  solemnly 
added  that  it  had  become  its  duty  ''to  declare  most  explicitly 
that  the  crisis  had  arrived  when  the  people  of  the  United  States, 
by  whose  will  and  for  whose  benefit  the  federal  government 
was  instituted,  must  decide  whether  they  will  support  their 
rank  as  a  nation  by  maintaining  the  public  faith  at  home  and 
abroad,  or  whether  for  the  want  of  a  timely  exertion  in  establish- 
ing a  general  revenue  and  thereby  giving  strength  to  the  Con- 
federacy, they  will  hazard  not  only  the  existence  of  the  Union 
but  of  those  great  and  invaluable  privileges  for  which  they  have 
so  arduously  and  so  honorably  contended." 

In  fact,  the  Articles  of  Confederation  had  hardly  gone  into 
effect  before  the  leading  citizens  also  began  to  feel  that  the  powers 


The  Establishment  of  the  Federal  Constitution     43 

of  Congress  were  wholly  inadequate.  In  1780,  even  before  /. 
their  adoption,  Alexander  Hamilton  proposed  a  general  con- 
vention to  frame  a  new  constitution,  and  from  that  time  forward 
he  labored  with  remarkable  zeal  and  wisdom  to  extend  and  popu- 
larize the  idea  of  a  strong  national  government.  Two  years 
later,  the  assembly  of  the  state  of  New  York  recommended  a 
convention  to  revise  the  Articles  and  increase  the  power  oj^ 
Congress.  In  1783,  Washington,  in  a  circular  letter  to  the  gov- 
ernors,^ urged  that  it  was  indispensable  to  the  happiness  of  the 
individual  states  that  there  should  be  lodged  somewhere  a  su- 
preme power  to  regulate  and  govern  the  general  concerns  of  the 
confederation.  Shortly  afterward  (1785),  Governor  Bowdoin, 
of  Massachusetts,  suggested  to  his  state  legislature  the  advis- 
ability of  calling  a  national  assembly  to  settle  upon  and  define 
the  powers  of  Congress;  and  the  legislature  resolved  that  the 
government  under  the  Articles  of  Confederation  was  inefficient 
and  should  be  reformed;  but  the  resolution  was  never  laid  before 
Congress. 

In  the  same  year,  however,  that  the  Massachusetts  resolution 
was  passed,  commissioners,  selected  by  Maryland  and  Virginia 
for  the  purpose  of  reaching  an  agreement  respecting  the  naviga- 
tion of  the  Potomac,  recommended  the  appointment  of  a  new 
commission  with  power  to  arrange  a  tariff  schedule,  subject  to 
the  consent  of  Congress,  to  be  enforced  by  both  states.  There- 
upon, Virginia  invited  all  the  other  states  to  send  delegates  to  . 
a  convention  at  Annapolis  to  consider  the  question  of  duties  on/ 
imports  and  commerce  in  general.  When  this  convention  as- 
sembled in  1786,  delegates  from  only  five  states  were  present, 
and  they  were  disheartened  at  the  limitations  on  their  powers 
and  the  lack  of  interest  the  other  states  had  shown  in  the  project. 
With  remarkable  foresight,  however,  Alexander  Hamilton  seized  > 
the  occasion  to  secure  the  adoption  of  a  recommendation  advising 
the  states  to  choose  representatives  for  another  convention  to 
meet  in  Philadelphia  the  following  year  "to  consider  the  Articles 
of  Confederation  and  to  propose  such  changes  therein  as  might 
render  them  adequate  to  the  exigencies  of  the  union."  This 
recommendation  was  cautiously  worded,  for  Hamilton  did  not 

'  This  letter  is  printed  along  with  other  important  materials  bearing 
on  the  movement  for  the  Constitution  in  Professor  Lawrence  Evans' 
Writings  of  Washington  (1908). 


44  American  Government  and  Politics 

want  to  raise  any  unnecessary  alarm.  Accordingly  no  general 
reconstruction  of  the  political  system  was  suggested;  the  Articles 
of  Confederation  were  merely  to  be  "revised";  and  the  amend- 
ments were  to  be  approved  by  the  state  legislatures  as  provided 
by  that  instrument. 

The  proposal  of  the  Annapolis  convention  was  transmitted  to 
the  state  legislatures  and  laid  before  Congress.  Congress  there- 
upon resolved  in  February,  1787,  that  a  convention  should  be 
held  for  the  sole  and  express  purpose  of  revising  the  Articles  of 
Confederation  and  reporting  to  itself  and  the  legislatures  of  the 
several  states  such  alterations  and  provisions  as  would  when 
agreed  to  by  Congress  and  confirmed  by  the  states  render  the 
federal  constitution  adequate  to  the  exigencies  of  government 
and  the  preservation  of  the  Union.^ 

In  pursuance  of  this  call,  delegates  to  the  new  convention  were 
chosen  by  the  legislatures  of  the  states  or  by  the  governors  in 
conformity  to  authority  conferred  by  the  legislative  assemblies.^ 
The  delegates  were  given  instructions  of  a  general  nature  by 
their  respective  states,  none  of  which,  apparently,  contemplated 
any  very  far-reaching  changes.  In  fact,  almost  all  of  them 
expressly  limited  their  representatives  to  a  mere  revision  of  the 
Articles  of  Confederation.^  For  example,  Connecticut  authorized 
her  delegates  'to  represent  and  confer  for  the  purpose  mentioned 
in  the  resolution  of  Congress  and  to  discuss  such  measures  "  agree- 
ably to  the  general  principles  of  republican  government"  as  they 
should  think  proper  to  render  the  Union  adequate.  Delaware, 
however,  went  so  far  as  to  provide  that  none  of  the  proposed  alter- 
ations should  extend  to  the  fifth  part  of  the  Articles  of  Confed- 
eration guaranteeing  that  each  state  should  be  entitled  to  one 
vote. 

The  National  Constitutional  Convention  oj  lySy 

It  was  a  truly  remarkable  assembly  of  men  that  gathered 
in  Philadelphia  in  May,  1787,  to  undertake  the  work  of  recon- 
structing the  American  system  of  government.     It  is  not  merely 

^  For  this  call,  see  Readings,  p.  43. 

^  Rhode  Island  alone  was  unrepresented.  In  all,  sixty-two  delegates 
were  appointed  by  the  states ;  fifty-five  of  these  attended  sometime  dur- 
ing the  sessions;    but  only  thirty-nine  signed  the  finished  document. 

^  For  example,  see  the  New  York  instructions.  Readings,  p.  44. 


The  Establishment  of  the  Federal  Constitution     45 

patriotic  pride  that  compels  one  to  assert  that  never  in  the  history 
of  assemblies  has  there  been  a  convention  of  men  richer  in  poUti-  /^ 
cal  experience  and  in  practical  knowledge,  or  endowed  with  a  . 
profounder  insight  into  the  springs  of  human  action  and  the 
intimate  essence  of  government.  It  is  indeed  an  astounding 
fact  that  at  one  time  so  many  men  skilled  in  statecraft  could  be 
found  on  the  very  frontiers  of  civilization  among  a  population 
numbering  about  four  million  whites.  It  is  no  less  a  cause  for 
admiration  that  their  instrument  of  government  should  have 
survived  the  trials  and  crises  of  a  century  that  saw  the  wreck  of 
more  than  a  score  of  paper  constitutions.  On  the  memorable 
roll  of  that  convention  were  Elbridge  Gerry,  Rufus  King,  Roger 
Sherman,  Alexander  Hamilton,  Oliver  Ellsworth,  Benjamin 
FrankHn,  Robert  Morris,  Gouverneur  Morris,  WiUiam  Paterson, 
James  Wilson,  George  Washington,  Edmund  Randolph,  James 
Madison,  John  Rutledge,  and  the  two  Pinckneys  —  to  mention 
only  a  few  whose  names  have  passed  indeUbly  into  the  records  of 
American  history. 

All  the  members  had  had  a  practical  training  in  poHtics. 
Washington,  as  commander-in-chief  of  the  revolutionary  forces, 
had  learned  well  the  lessons  and  problems  of  war,  and  mastered 
successfully  the  no  less  difficult  problems  of  administration. 
The.  two  Morrisg^  had  distinguished  themselves  in  grappling 
with  financial  questions  as  trying  and  perplexing  as  any  which 
statesmen  had  ever  been  compelled  to  face.  Seven  of  the  delegates 
had  gained  poUtical  wisdom  as  governors  of  their  native  states; 
and  no  less  than  twenty-eight  had  served  in  Congress  either 
during  the  Revolution  or  under  the  Articles  of  Confederation. 
There  were  men  trained  in  the  law,  versed  in  finance,  skilled  in 
administration,  and  learned  in  the  political  philosophy  of  their 
own  and  all  earlier  times.  Moreover,  they  were  men  destined 
to  continue  public  service  under  the  government  which  they 
had  met  to  construct  —  Presidents,  Vice-Presidents,  heads  of 
departments,  justices  of  the  Supreme  Court,  were  in  that  imposing 
body.  They  were  equal  to  the  great  task  of  constructing  a 
national  system  strong  enough  to  defend  the  country  on  land  and 
sea,  pay  every  dollar  of  the  lawful  debt,  and  afford  sufficient 
guarantees  to  the  rights  of  private  property. 

The  criticism  has  been  advanced  that  this  assembly  of  great 
men  was  more  interested  in  strong  government  than  in  democ- 


/ 


46  American  Government  and  Politics 

racy.  It  must .  be  remembered,  however,  that  they  were  con- 
vened not  to  write  a  Declaration  of  Independence,  but  to  frame  a 
government  which  would  meet  the  practical  issues  that  had  arisen 
under  the  Articles  of  Confederation.  The  objections  they  enter- 
tained to  direct  popular  government,  and  they  were  undoubtedly 
many,  were  based  upon  their  experience  with  popular  assemblies 
during  the  immediately  preceding  years.  With  many  of  the 
plain  lessons  of  history  before  them,  they  naturally  feared  that 
the  rights  and  privileges  of  the  minority  would  be  insecure  if  the 
principle  of  majority  rule  was  definitely  adopted  and  provisions 
made  for  its -exercise.  Furthermore,  it  will  be  remembered  that 
up  to  that  time  the  right  of  all  men,  as  men,  to  share  in  the  gov- 
ernment had  never  been  recognized  in  practice.  Everywhere  in 
Europe  the  government  was  in  the  hands  of  a  ruling  monarch  or 
at  best  a  ruling  class;  everywhere  the  mass  of  the  people  had 
been  regarded  principally  as  an  arms-bearing  and  tax-paying 
multitude,  uneducated,  and  with  little  hope  or  capacity  for  ad- 
vancement. Two  years  were  to  elapse  after  the  meeting  of  the 
grave  assembly  at  Philadelphia  before  the  transformation  of  the 
Estates  General  into  the  National  Convention  in  France  opened 
the  floodgates  of  revolutionary  ideas  on  human  rights  before 
whose  rising  tide  old  landmarks  of  government  are  still  being 
submerged.  It  is  small  wonder,  therefore,  that  under  the  cir- 
cumstances many  of  the  members  of  that  august  body  held 
popular  government  in  slight  esteem  and  took  the  people  into 
slight  consideration  —  enough  ''to  inspire  them  with  the  neces- 
sary confidence,"  as  Mr.  Gerry  frankly  put  it.^ 

Indeed,  every  page  of  the  laconic  record  of  the  proceedings  of 
the  convention  preserved  to  posterity  by  Mr.  Madison  shows 
conclusively  that  the  members  of  that  assembly  were  not  seek- 
ing to  reahze  any  fine  notions  about  democracy  and  equaHty, 
but  were  striving  with  all  the  resources  of  political  wisdom  at 
their  command  to  set  up  a  system  of  government  that  would  be 
stable  and  efficient,  safeguarded  on  one  hand  against  the  possi- 
bihties  of  despotism  and  on  the  other  against  the  onslaught  of 
majorities.  In  the  mind  of  Mr.  Gerry,  the  evils  they  had  ex- 
perienced flowed  "from  the  excess  of  democracy,"  and  he  con- 
fessed that  while  he  was  still  republican,  he  "had  been  taught 
by  experience  the  danger  of  the  levelling  spirit."  ^  Mr.  Ran- 
'  Elliot's  Debates,  Vol.  V,  p.  160.  ^  Ibid.,  Vol.  V,  p.  136. 


The  Establishment  of  the  Federal  Constitution     47 

dolph,  in  offering  to  the  consideration  of  the  convention  his  plan 
of  government,  observed  "that  the  general  object  was  to  provide 
a  cure  for  the  evils  under  which  the  United  States  labored;  that, 
in  tracing  these  evils  to  their  origin,  every  man  had  found  it  in 

the  turbulence  and  follies  of  democracy;  that  some  check  there-  

fore  was  to  be  sought  for  against  this  tendency  of  our  govern- 
ments; and  that  a  good  Senate  seemed  most  likely  to  answer 
the  purpose."  ^  Mr.  Hamilton,  in  advocating  a  life  term  for 
Senators,  urged  that  "  all  communities  divide  themselves  into  the 
few  and  the  many.  The  first  are  rich  and  well  born  and  the  other 
the  mass  of  the  people  who  seldom  judge  or  determine  right."  ^ 

Gouverneur  Morris  wanted  to  check  the  "precipitancy,  change- 
ableness,  and  excess"  of  the  representatives  of  the  people  by  the 
abiUty  and  virtue  of  men  "of  great  and  estabUshed  property  — 
aristocracy;   men  who  from  pride  will  support  consistency  and 
permanency.  .  .  .     Such  an  aristocratic  body  will  keep  down 
the  turbulence  of  democracy."     While  these  extreme  doctrines 
were  somewhat  counterbalanced  by  the  democratic  principles  of 
Mr.  Wilson,  who  urged  that  "the  government  ought  to  possess, 
not  only  first,  the  force,  but  second  the  mind  or  sense  of  the  people 
at  large,"  Madison  doubtless  summed  up  in  a  brief  sentence  the 
general  opinion  of  the  convention  when  he  said  that  to  secure  j 
private  rights  against  majority  factions,  and  at  the  same  time  to  | 
preserve  the  spirit  and  form  of  popular  government,  was  thev 
great  object  to  which  their  inquiries  had  been  directed.^ 

They  were  anxious  above  everything  else  to  safeguard  the 
rights  of  private  property  against  any  levelling  tendencies  on  V 
the  part  of  the  propertyless  masses.  Gouverneur  Morris,  in 
speaking  on  the  problem  of  apportioning  representatives,  cor- 
rectly, stated  the  sound  historical  fact  when  he  declared:  "Life 
and  liberty  were  generally  said  to  be  of  more  value  than  property. 
An  accurate  view  of  the  matter  would,  nevertheless,  prove  that]  i- 
property  was  the  main  object  of  society.  ...  If  property,  thenj 
was  the  main  object  of  government,  certainly  it  ought  to  be  on^ 
measure  of  the  influence  due  to  those  who  were  to  be  affected  by 
the  government."  *  Mr.  King  also  agreed  that  "property  was 
the  primary  object  of  society;  "  ^  and  Mr.  Madison  warned  the 

*  Elliot's  Debates,  Vol.  V,  p.  138.  ^  Readings,  p.  47. 
'  The  Federalist,  No.  X  ;  Readings,  p.  50. 

♦  Elliot's  Debates,  Vol.  V,  p.  279.  '^  Ibid.,  Vol.  V,  p.  280. 


48  American  Government  and  Politics 

convention  that  in  framing  a  system  which  they  wished  to  last 
for  ages  they  must  not  lose  sight  of  the  changes  which  the  ages 
would  produce  in  the  forms  and  distribution  of  property.  In 
advocating  a  long  term  in  order  to  give  independence  and  firm- 
ness to  the  Senate,  he  described  these  impending  changes:  "An 
increase  of  population  will  of  necessity  increase  the  proportion 
of  those  who  will  labor  under  all  the  hardships  of  hfe  and  secretly 
sigh  for  a  more  equal  distribution  of  its  blessings.  These  may 
in  tinie  outnumber  those  who  are  placed  above  the  feehngs  of 
indigence.  According  to  the  equal  laws  of  suffrage,  the  power 
will  shde  into  the  hands  of  the  former.  No  agrarian  attempts 
have  yet  been  made  in  this  country,  but  symptoms  of  a  levelling 
spirit,  as  we  have  understood,  have  sufficiently  appeared,  in  a 
certain  quarter,  to  give  notice  of  the  future  danger."  ^  And 
again,  in  support  of  the  argument  for  a  property  quaUfication  on 
voters,  Madison  urged:  "In  future  times,  a  great  majority  of  the 
people  will  not  only  be  without  landed,  but  any  other  sort  of 
property.  These  will  either  combine,  under  the  influence  of  their 
common  situation,  —  in  which  case  the  rights  of  property  and 
the  pubUc  Hberty  will  not  be  secure  in  their  hands,  —  or,  what 
is  more  probable,  they  will  become  the  tools  of  opulence  and  am- 
bition ;  in  which  case  there  will  be  equal  danger  on  another  side."  ^ 
Various  projects  for  setting  up  class  rule  by  the  estabhshment  of 
property  qualifications  for  voters  and  officers  were  advanced  in 

Ethe  convention,  but  they  were  defeated.  On  account  of  the 
versity  of  opinion  that  prevailed,  agreement  was  impossible, 
id  it  was  thought  best  to  trust  this  matter  to  the  discretion  and 
Lsdom  of  the  states. 

Nevertheless,  by  the  system  of  checks  and  balances  placed  in 
the  government,  the  convention  safeguarded  the  interests  of 
property  against  attacks  by  majorities.  The  House  of  Repre- 
sentatives, Mr.  Hamilton  pointed  out,  "was  so  formed  as  to 
render  it  particularly  the  guardian  of  the  poorer  orders  of  citi- 
zens," ^  while  the  Senate  was  to  preserve  the  rights  of  property 
and  the  interests  of  the  minority  against  the  demands  of  the 
majority.''  In  the  tenth  number  of  The  Federalist,  Mr.  Madison 
argued  in  a  philosophic  vein  in  support  of  the  proposition  that 

'  Elliot's  Debates,  Vol.  V,  p.  243.  ^  /^^  Vol.  V,  p.  387. 

3  Ibid.,  Vol.  V,  p.  244.  "  Ibid.,  Vol.  V,  p.  203. 


The  Establishment  of  the  Federal  Constitution     49 

it  was  necessary  to  base  the  political  system  on  the  actual 
conditions   of  ''natural    inequality."      Uniformity  of   interests 
throughout  the  state,  he  contended,  was  impossible  on  account  of 
the  diversity  in  the  faculties  of  men,  from  which  the  rights  of 
property  originated;    the  protection  of  these  faculties  was  the 
first  object  of  government;   from  the  protection  of  different  and 
unequal  faculties  of  acquiring  property  the  possession  of  differ- 
ent degrees  and  kinds  of  property  immediately  resulted;   from 
the  influence  of  these  on  the  sentiments  and  views  of  the  respective 
proprietors  ensued  a  division  of  society  into  different  interests 
and  parties;  the  unequal  distribution  of  wealth  inevitably  led  to 
a  clash  of  interests  in  which  the  majority  was  liable  to  carry  out 
its  policies  at  the  expense  of  the  minority;  hence,  he  added,  in 
concluding  this  splendid  piece  of  logic,  "the  majority,  having^ 
such  coexistent  passion  or  interest,  must  be  rendered  by  their  \ 
number  and  local  situation  unable  to  concert  and  carry  into  I 
effect  schemes  of  oppression";  and  in  his  opinion  it  was  the  great  I 
merit  of  the  newly  framed  Constitution  that  it  secured  the  rights ) 
of  the  minority  against  "the  superior  force  of  an  interested  and\ 
overbearing  majority."  ^ 

Drafting  a  National  Constitution 

The  convention  had  not  proceeded  very  far  in  the  considera- 
tion of  the  problems  before  it  when  the  question  was  raised  as  to 
whether  the  delegates  were  bound  by  their  instructions  to  the 
mere  amendment  of  the  Articles  of  Confederation  or  were  free 
to  make  a  revolution  in. the  political  system.  Mr.  Paterson 
argued  that  the  delegates  were  bound  by  their  instructions :  "If 
the  Confederacy  is  radically  wrong,  let  us  return  to  our  states 
and  obtain  larger  powers,  not  assume  them  ourselves.  .  .  .  Our 
object  is  not  such  a  government  as  may  be  best  in  itself,  but  such 
a  one  as  our  constituents  have  authorized  us  to  prepare  and  as 
they  will  approve."  ^  Mr.  Randolph,  however,  declared  that  he 
"was  not  scrupulous  on  the  point  of  power.  When  the  salvation 
of  the  republic  was  at  stake,  it  would  be  treason  to  our  trust  not  ~ 
to  propose  what  we  found  necessary."  ^  With  this  view,  Mr. 
Hamilton  agreed:    "We  owed  it  to  our  country  to  do  on  this 

^Readings,  p.  50.  '  Elliot's  Debates,  Vol.  V,  p.  194. 

3  Ibid.,  Vol.  V,  p.  197. 


50  American  Government  and  Politics 


1 


emergency  whatever  we  should  deem  essential  to  its  happiness. 
The  states  sent  us  here  to  provide  for  the  exigencies  of  the  Union. 
To  rely  on  and  propose  any  plan  not  adequate  to  these  exigencies 
.  merely  because  it  was  not  clearly  within  our  powers  would  be 
to  sacrifice  the  means  to  the  end."  ^ 

Fortunately  for  the  cause  of  national  union,  these  delegates 

'^^  threw  off  the  restrictions  placed  upon  them  by  their  instructions, 
and  frankly  disregarded  the  fact  that  they  had  assembled  merely 
to  amend  the  Articles  of  Confederation,  not  to  make  a  new  instru- 
ment of  government.  They  refused  to  be  bound  either  by  the 
letter  or  spirit  of  the  Articles  or  their  orders,  for  they  even  pro- 

-^  vided  that  the  new  government  should  go  into  effect  when  rati- 
fied by  nine  states,  whereas  under  the  Articles  unanimous  approval 
was  required  for  any  amendment.  In  order  that  their  purposes 
should  not  be  discovered  and  thwarted  by  pubhc  criticism,  the 
convention  sat  behind  closed  doors;  their  proceedings  were  kept 
secret;  and  members  were  even  forbidden  to  correspond  with 
outsiders  on  the  topics  under  discussion.  Not  until  the  draft 
was  finished  did  the  people  know  what  the  convention  had  done, 
and  even  then  they  did  not  know  the  secret  forces  which  had 
caused  the  introduction  of  certain  clauses,  or  the  full  intention 
of  the  framers  as  to  the  ways  in  which  the  new  government  was 
designed  to  work. 

A  large  majority  of  the  convention  had  determined  to  estab- 
lish  a  strong  national  government  to  take  the  place  of  the  con- 

"^""fedwate  system,  and  to  do  this  it  was  absolutely  necessary  to 
throw  aside  the  fundamental  features  of  the  Articles  of  Con- 
federation, which,  according  to  their  instructions,  they  were 
assembled  to  amend.  On  May  30,  1787,  five  days  after  the 
opening  of  the  convention,  a  resolution  was  adopted  in  the  Com- 
mittee of  the  WTiole,  "that  a  national  government  ought  to  be 
estabHshed  consisting  of  a  supreme  legislative,  executive,  and 
judiciary."  ^  The  distinction  between  a  "federal  and  a  national 
supreme  government,"  was  clearly  explained  by  Gouvemeur 
Morris.  "The  former,"  he  said,  was  "a  mere  compact  resting 
on  the  good  faith  of  the  parties,"  while  the  latter  had  "a  com- 
plete and  compulsive  operation";  and  he  concluded  by  adding 
that  "in  all  communities  there  must  be  one  supreme  power  and 

»  Elliot's  Debates,  Vol.  V,  p.  199.  -  Ibid.,  Vol.  V,  p.  134. 


The  Establishment  of  the  Federal  Constitution     51 

one  only."  ^  Mr.  Madison,  in  discussing  the  problem  of  repre- 
sentation, observed  that  "whatever  reason  might  have  existed 
for  the  equality  of  suffrage  when  the  Union  was  a  federal  one 
among  sovereign  states,  it  must  cease  when  a  national  govern- 
ment should  be  put  in  their  place."  ^  Mr.  Read  of  Delaware 
even  went  so  far  as  to  say  that  the  national  government  must 
soon  of  necessity  swallow  up  all  the  state  governments ;  •'  and 
Mr.  Wilson  of  Pennsylvania  declared  that  he  could  not  even  admit 
the  doctrine  that  when  the  colonies  became  independent  of  Great 
Britain  they  were  independent  of  each  other,  and  contended  that 
the  colonies  were  not  declared  to  be  fi^e  and  independent  states 
individually,  but  only  unitedly."*  Mr.  Hamilton  went  even  fur- 
ther than  the  other  members  of  the  convention  in  his  stanch 
adherence  to  the  idea  of  a  supreme  national  government;  he 
advocated  the  appointment  of  state  executives  by  the  general 
government  and  wanted  to  give  Congress  the  power  to  legislate 
on  every  matter  whatsoever."' 

That  it  was  the  desire  of  a  majority  of  the  convention  to  estab- 
lish a  supreme  national  government  is  evidenced  in  nearly  every 
page  of  the  debates.  That  such  was  their  intention  was  explicitly 
declared  by  Luther  Martin,  of  Maryland,  in  a  letter  to  the  legis- 
lature of  his  state  justifying  his  conduct  in  withdrawing  from 
the  convention.  He  contended  that  the  plan  of  government, 
as  devised  by  the  convention,  was  "  a  national  not  a  federal  gov- 
ernment," and  one  "calculated  and  designed  not  to  protect  and 
preserve  but  to  abolish  and  annihilate  the  state  govemment.4." 
In  criticising  the  advocates  of  a  strong  national  government,  he 
continued:  "  So  far  were  the  friends  of  the  system  from  pretending 
that  they  meant  it  or  considered  it  a  federal  system,  that,  at  the 
question  being  proposed,  *  that  a  union  of  the  states  merely  federal 
ight  to  be  the  sole  object  of  the  exercise  of  the  powers  vested  in 
e  convention,'  it  was  negatived  by  a  majority  of  the  mem>>ers; 
id  it  was  afterwards  resolved, '  that  a  national  government  ought 
be  formed. '  Afterwards,  the  word  *  national '  was  struck  out  by 
em  because  they  thought  the  word  might  tend  to  alarm;  and 
though  now  they  who  advocate  this  system  pretend  to  call 
themstWes  federalists,  in  convention  the  distinction  was  quite  the 

'  Elliot'*  DdnUes,  Vol.  V,  p.  133.  *  Ibid.,  Vol.  V,  p.  135. 

» Ibid.,  VoL  V,  p.  163.  *  Ibid.,  Vol.  V,  p.  213, 

*  Ibid.,  Vol.  V,  p.  205. 


52  American  Government  and  Politics 

reverse;    those  who  opposed  the  system  were  there  considered 
and  styled  the  federal  party,  those  who  advocated  it,  the  anti- 


y  In  devising  this  national  system  it  was  necessary  to  make 
Vfnany  compromises.^  In  the  first  place,  the  small  states  demanded 
equal  representation  and  the  large  states  representation  accord- 
ing to  population;  a  compromise  gave  the  small  states  equality 
in  the  Senate  and  the  large  states  proportional  representation  in 
the  lower  House.  In  the  next  place,  the  slave  states  wished  to 
have  slaves  counted  in  the  apportionment  of  representation  — 
a  demand  which  was  stoutly  opposed  by  the  non-slave  states; 

\  and  a  compromise  was  reached  by  the  provision  that  in  appor- 
tioning  representation  and  direct  taxes  only  three-fifths  of  the 
total  number  of  slaves  should  be  counted.  In  the  third  place, 
the  North,  having  larger  commercial  interests  than  the  South, 
wished  to  gtve  Congress  the  power  to  regulate  commerce,  but  the 

fO  South,  being  solicitous  of  the  slave  trade,  feared  its  prohibition 
in  case  unqualified  power  was  vested  in  Congress;  and  the 
result  was  a  compromise  authorizing  Congress  to  regulate  com- 
merce, but  forbidding  it  to  prohibit  the  importation  of  slaves 
before  the  year  1808. 

In  addition  to  these  great  compromises  which  had  to  be  made 
on  account  of  the  diversity  among  the  states  in  area,  popula- 
tion, and  wealth,  there  was  a  still  greater  compromise  —  the 
most  fundamental  one  of  all  —  the  compromise  between  that 
party  in  the  nation  which  wanted  a  government  strong  enough 
to  pay  the  national  debt,  regulate  commerce,  protect  creditors, 
and  sustain  property  rights  in  general,  and  that  other  party  which 
was  especially  concerned  about  a  democratic  and  confederate 

•^  form  of  government.     The  result  here  was  a  compromise  whirh, 

i  Madison  contended,  secured  the  spirit  and  form  of  popular  01: 
ernment  while  preventing  direct  and  simple  majority  rule.'  th 
.  This  compromise,  in  conjunction  with  the  compromises  nai 
I  tioned  above,  resulted  in  the  establishment  of  what  is  kr  tc 
as  the  check  and  balance  system.  In  this  system,  the'^Pcesi-  tl 
is  elected  for  a  four-year  term  by  an  indirect  process;  the  Sei 
t^ys-are  elected  for  a  six-year  term  (one-third  going  out  every 


Elliot's  Debates,  Vol.  I,  p.  362. 

For  a  contemporary  view,  Readings,  p.  45.       '  See  Readings,  p.  52 


i 


The  Establishment  of  the  Federal  Constitution     53 

two  years)  by  another  process  —  by  the  state  legislatures;  the 
members  of  the  House  oi.£^resentatives  are  elected  by  another 
process  —  popular  vote  —  for  a  term  of  two  years;  and  over 
against  these  three  institutions  is  set  a  Snprerpe  Court  composed 
of  judges  appointed  by  another  process  —  the  President  and 
Senate  —  for  Ufe  terms,  and  enjoying  the  power  to  declare  null 
and  void  the  unconstitutional  acts  of  the  other  departments. 

It  is  highly  improbable,  therefore,  that  any  political  party  at  a 
single  national  election  may  secure  an  unqualified  control  over 
all  of  these  departments  of  government  and  rush  through  any  ex- 
tremely radical  measure.  This  system  is  eloquently  described  in  a 
little  anecdote  related  of  Jefferson  and  Washington.  The  former 
on  one  occasion  was  advancing  many  objections  to  a  bicameral 
legislature,  when  Washington  repHed,  "  You  yourself  have  proved 
the  excellence  of  two  houses  this  very  moment."  Astonished 
at  this  Jefferson  inquired,  "  I  ?  How  is  that,  General  ?""  You  ** 
have,"  explained  Washington,  "turned  your  hot  tea  from  the 
cup  into  the  saucer  to  get  cool.  It  is  the  same  thing  we  desire 
of  the  two  Ijouses." 

Fundamental  Features  of  the  New  System 

I .  The  Articles  of  Confederation  provided  no  separate  executive 
department  charged  with  the  high  function  of  enforcing  federal  law. 
This  grave  defect  was  carefully  considered  by  the  convention, 
and  warmly  discussed  by  the  advocates  of  the  new  system. 
All  were  agreed  that  a  strong  executive  power  was  indispensable,  \ 
but  they  were  uncertain  as  to  whether  such  an  important  au- 
thority should  be  vested  in  a  single  person  or  in  a  directorate.  J 
They  also  had  no  little  diflftculty  in  deciding  on  the  method  by 
which  the  chief  magistrate  was  to  be  elected. 

On  the  point  of  a  single  executive  armed  with  large  powers, 
Hamilton  argued  with  great  cogency:  "Energy  in  the  executive 
is  a  leading  character  in  the  definition  of  good  government. 
It  is  essential  to  the  protection  of  the  community  against  foreign 
attacks.  It  is  not  less  essential  to  the  steady  administration  of 
the  laws,  to  the  protection  of  property  against  those  irregular 
and  high-handed  combinations  which  sometimes  interrupt  the 
ordinary  course  of  justice,  to  the  security  of  liberty  against  the 
enterprises  and  assaults  of  ambition,  of  faction,  and  of  anarchy. 


54  American  Government  and  Politics 

Every  man,  the  least  conversant  with  Roman  story,  knows  how 
often  that  republic  was  obhged  to  take  refuge  in  the  absolute 
powerkof  a  single  man,  under  the  formidable  title  of  dictator, 
as  well  against  the  intrigues  of  ambitious  individuals  who  aspired 
to  the  tyranny,  and  the  seditions  of  whole  classes  of  the  community 
whose  conduct  threatened  the  existence  of  all  government,  as 
against  the  invasions  of  external  enemies  who  menaced  the 
conquest  and  destruction  of  Rome."  ^ 

Such  weighty  considerations  prevailed  in  the  convention,  and 
an  executive  department  with  a  single  head  endowed  with  regal 
powers  was  created.  To  meet  the  objection  of  those  who  were 
afraid  of  intrusting  too  much  political  control  to  the  mass  of  the 
people,  it  was  decided  that  the  President  should  be  chosen  in- 

I  directly  by  electors  appointed  as  the  legislatures  of  the  several 
states  might  determine. 

2.  No  less  grave  defects  were  inherent  in  the  legislature  created 
by  the  Articles  of  Confederation.  Three,  in  particular,  engaged 
the  attention  of  the  convention  :^  the.  equality  of  the  several 
states,  large  and  small,  in  voting  power  f^the  instability  of  a  single 
chamber;  and  thelLbsence  of  direct  representation  of  the  people 
in  the  Congress — the  delegates  being  appointed  by  their  respec- 
tive state  legislatures  and  thus  dependent  upon  the  states  as 
corporate  entities  rather  than  upon  the  people  thereof.  The 
convention  accordingly  decided  upon  a  bicameral  legislature:  a 
Senate  affording  equal  representation  to  all  states  and  a  House 
composed  of  representatives  apportioned  among  the  states  on  a 
basis  of  population.  Moreover,  the  significant  fact  must  not  be 
overlooked,  that  it  was  provided  that  the  members  of  the  new 
Congress  were  to  be  paid  from  the  national  treasury  and  thus 
relieved  from  all  dependence  upon  state  revenues.  "If  the 
states  were  to  pay  the  members  of  the  national  legislature," 
said  Randolph  in  the  convention,  "a  dependence  would  be 
created  that  would  vitiate  the  whole  system.  .  .  .  The  national 
treasury,  therefore,  is  the  proper  fund  for  supporting  them."  - 

3.  The  crowning  defect  of  the  Articles,  according  to  Hamilton, 
was  the  w^pt  ^f  p  rpntral^  jnHiriary  The  old  Congress  had  no 
authority  to  organize  courts  of  general  jurisdiction,  although 
it  could  act   as   a   tribunal   of  "last   resort  on  appeal  in   all 

1  The  Federalist,  No.  LXX.  ^  EUiot's  Debates,  Vol.  V,  p.  226. 


The  Establishment  of  the  Federal  Constitution     55 

disputes  and  differences  arising  between  two  or  more  states  con- 
cerning boundary,  jurisdiction,  or  any  other  cause  whatever."  ^ 
It  therefore  had  no  way  of  enforcing  federal  laws  by  judicial 
process,-  and  as  Hamilton  said:  "Laws  are  a  dead  letter  without' 
courts  to  expound  and  define  their  true  meaning  and  operation. 
The  treaties  of  the  United  States,  to  have  any  force  at  all,  must 
be  considered  as  a  part  of  the  law  of  the  land.  Their  true  import 
as  far  as  respects  individuals,  must  Uke  all  other  laws  be  ascer- 
tained by  judicial  determinations.  To  produce  uniformity  in 
these  determinations  they  ought  to  be  submitted  in  the  last  re- 
sort to  one  supreme  tribunal."  ^  Moreover,  Hamilton,  fearing 
the  aggression  of  the  legislature,  believed  that  the  court  should 
have  the  power  of  declaring  laws  unconstitutional.  Accordingly 
a  Supreme  Court,  and  inferior  courts  to  be  erected  by  Congress, 
were  given  jurisdiction  over  all  cases  arising  under  the  Constitu- 
tion, federal  laws,  and  treaties — a  jurisdiction  by  later  congres- 
sional enactment  and  judical  decision  interpreted  to  include  the 
power  of  declaring  state  and  federal  laws  unconstitutional. 

4.  The  financial  and  commercial  objections  to  the  Articles  of 
Confederation  were   met  by  two  important  provisions.     The 
necessity  of  depending  upon  the  state  legislatures  for  federal      (; 
funds  was  entirely  eliminated  by  the  clause  authorizing  Congress^ 
to  raise  revenues  by  taxes,  duties,  and  excises  bearing  imme- 
diately upon  the  people  as  individuals.     The  continuation  of  the 
commercial  warfare  among  the  states  was  prevented  by  the 
clause  empowering  Congress  to  regulate  commerce  among  the  sev-^  ^ 
eral  states  and  with  foreign  nations,  as  well  as  with  the  Indians. 
The  national  government  was  also  authorized  to  establish  uni- 
form bankruptcy  laws  and   thus   exercise   at  will  an  effective 
check  upon  the  shrewdly  devised  state  legislation  through  which 
debtors  sought  to  escape  from  some  of  their  obligations.^ 

No  less  important  for  financial  and  commercial  purposes  were  ; 
the  restrictions  laid  upon  the  powers  of  the  states.  They  were 
forbidden  to  emit  bills  of  credit,  make  anything  but  gold  and 
silver  coin  tender  in  payment  of  debts,  pass  ex  post  facto  laws,  lay 
duties  on  imports  or  exports  (except  with  the  consent  of  Congress 
for  specific  purposes),  lay  tonnage  duties,  or  pass  any  law  impair- 
ing the  obhgation  of  contract. 

'  See  Readings,  p.  30.  ^  Except  in  maritime  and  admiralty  matters. 

'  The  Federalist,  No.  XXII.     "  See  Readings,  pp.  236  ff. 


56  American  Government  and  Politics 

5.  Special  effectiveness  was  given  to  the  new  powers  conferred 
upon  the  national  government  by  authorizing  it  to  deal  with 
individuals  instead  of  thirteen  distinct  and  separate  states. 
Hence  it  was  no  longer  possible  for  states  to  violate  and  disregard 
treaties  made  by  the  federal  government,  or  to  look  upon  federal 
laws  as  mere  recommendations  to  be  obeyed  if  desirable  or  neg- 
lected altogether. 

6.  Of  particular  significance  was  the  clause  providing  for  future 
amenjlaifittte.  The  Articles  of  Confederation  had  stipulated 
that  no  alteration  should  be  made  without  the  approval  of  Con- 
gress and  ratification  by  the  legislature  of  every  state.  The  new 
Constitution  bound  every  state  to  an  amendment,  in  case  it  was 

I  approved  by  two- thirds  of  both  houses  of  Congress  and  ratified- 
'  by  three-fourths  of  the  states.  Even  this  system,  as  events  have 
proved,  has  required  such  extraordinary  majorities  as  to  make 
amendments  by  regular  process  well-nigh  impossible.  Radical 
as  this  departure  may  have  seemed  to  the  ardent  champion  of 
states'  rights,  it  was  not  radical  enough  for  Patrick  Henry,  for  he 
declared  in  the  Virginia  convention  called  to  ratify  the  Consti- 
tution that  "Four  of  the  smallest  states,  that  do  not  collectively 
contain  one-tenth  part  of  the  population  of  the  United  States, 
may  obstruct  the  most  salutary  and  necessary  amendments. 
...  A  bare  majority  in  these  four  small  states  may  hinder  the 
adoption  of  amendments;  so  that  we  may  fairly  say  and  justly 
conclude  that  one-twentieth  part  of  the  American  people  may 
^  prevent  the  removal  of  the  most  grievous  inconveniences  and 
oppression  by  refusing  to  accede  to  amendments.  ...  Is  this 
an  easy  mode  of  securing  the  public  hberty?  It  is,  sir,  a  most 
fearful  situation  when  the  most  contemptible  minority  can  pre- 
vent the  alteration  of  the  most  oppressive  government;  for  it 
may,  in  many  respects,  prove  to  be  such."  * 

The  Radfication  of  the  Constitution 

It  is  evident  from  an  examination  of  these  departures  from 
the  Articles  of  Confederation  that  a  revolution  in  our  political 
system  was  contemplated  by  the  framers  of  the  Constitution. 
They  were  doubtless  unaware  of  all  the  national  impUcations 

'  Elliot's  Debates,  Vol.  Ill,  pp.  48-50. 


The  Establishment  of  the  Federal  Constitution     57 

contained  in  the  instrument  which  they  drafted,  but  they  knew 
very  well  that  the  state  legislatures,  which  had  been  so  negligent 
in  paying  their  quotas  under  the  Articles  and  which  had  been 
so  jealous  of  their  rights,  would  probably  stick  at  ratifying  such 
a  national  instrument  of  government.  Accordingly  they  cast 
aside  that  clause  in  the  Articles  requiring  amendments  to  be 
ratified  by  the  legislatures  of  all  the  states ;  and  advised  that  the 
new  Constitution  should  be  ratified  by  conventions  in  the  several 
states  composed  of  delegates  chosen  by  the  voters.  They  further- 
more declared  —  and  this  is  a  fundamental  matter  —  that  when 
the  conventions  of  nine  states  had  ratified  the  Constitution  the 
new  government  should  go  into  effect  so  far  as  those  states  were 
concerned.  The  chief  reason  for  resorting  to  ratifications  by 
conventions  is  laid  down  by  Hamilton  in  the  twenty-second 
number  of  The  Federalist:  "It  has  not  a  little  contributed  to  the 
infirmities  of  the  existing  federal  system  that  it  never  had  a  rati- 
fication by  the  people.  Resting  on  no  better  foundation  than  the 
consent  of  the  several  legislatures,  it  has  been  exposed  to  fre- 
quent and  intricate  questions  concerning  the  vaUdity  of  its 
powers;  and  has  in  some  instances  given  birth  to  the  enormous 
doctrine  of  a  right  of  legislative  repeal.  Owing  its  ratification^ 
to  the  law  of  a  state,  it  has  been  contended  that  the  same  author- 
ity might  repeal  the  law  by  which  it  was  ratified.  However 
gross  a  heresy  it  may  be  to  maintain  that  a  party  to  a  compact 
has  a  right  to  revoke  that  compact,  the  doctrine  itself  has  respect- 
able advocates.  The  possibility  of  a  question  of  this  nature 
proves  the  necessity  of  laying  the  foundations  of  our  national 
government  deeper  than  in  the  mere  sanction  of  delegated  author- 
ity. The  fabric  of  American  empire  ought  to  rest  on  the  solid 
basis  of  the  consent  of  the  people.  The  streams  of  national  power 
ought  to  flow  immediately  from  that  pure  original  fountain  of 
all  legitimate  authority." 

Of  course,  the  convention  did  not  resort  to  the  revolutionary 
policy  of  transmitting  the  Constitution  directly  to  the  conven- 
tions of  the  several  states.  It  merely  laid  the  finished  instru- 
ment before  the  confederate  Congress  with  the  suggestion  that 
it  should  be  submitted  to  "a  convention  of  delegates  chosen  in 
each  state  by  the  people  thereof,  under  the  recommendation  of 
its  legislature,  for  their  assent  and  ratification;  and  each  con- 
vention assenting  thereto  and  ratifying  the  same  should  give 


58  American  Government  and  Politics 

notice  thereof  to  the  United  States  in  Congress  assembled."  ^ 
The  convention  went  on  to  suggest  that  when  nine  states  had 
ratified  the  Constitution,  the  confederate  Congress  should  ex- 
tinguish itself  by  making  provision  for  the  elections  necessary 
to  put  the  new  government  into  effect.-^  "What  they  [the  con- 
vention] actually  did,  stripped  of  all  fiction  and  verbiage,"  says 
Professor  Burgess,  "was  to  assume  constituent  powers,  ordain  a 
Constitution  of  government  and  of  liberty,  and  demand  the 
plebiscite  thereon,  over  the  heads  of  all  existing  legally  organized 
powers.  Had  Julius  or  Napoleon  committed  these  acts,  they 
would  have  been  pronounced  coups  d'etat.  Looked  at  from  the 
side  of  the  people  exercising  the  plebiscite,  we  term  the  move- 
ment revolution.  The  convention  clothed  its  acts  and  assump- 
tions in  more  moderate  language  than  I  have  used,  and  professed 
to  follow  a  more  legal  course  than  I  have  indicated.  The  exact 
form  of  procedure  was  as  follows.  They  placed  in  the  body  of 
the  proposed  Constitution  itself  a  provision  declaring  that  rati- 
fications by  conventions  of  the  people  in  nine  states  (com- 
monwealths) should  be  sufficient  for  the  establishment  of  the 
Constitution  between  the  states  (commonwealths)  so  ratifying 
the  same.  They  then  sent  the  instrument  entire  to  the  Con- 
federate Congress,  with  the  direction,  couched  in  terms  of  advice, 
that  the  Congress  should  pass  it  along,  untouched,  to  the  legis- 
latures of  the  commonwealths,  and  that  these  should  pass  it 
along,  also  untouched,  to  conventions  of  the  people  in  each 
commonwealth,  and  that  when  nine  conventions  should  have 
approved,  Congress  should  take  steps  to  put  the  new  government 
into  operation  and  abdicate.  Of  course  the  mass  of  the  people 
were  not  at  all  able  to  analyze  the  real  character  of  this  proced- 
ure. It  is  probable  that  many  of  the  members  of  the  conven- 
tion itself  did  not  fully  comprehend  just  what  they  were  doing. 
Not  many  of  them  had  had  sufficient  education  as  publicists  to 
be  able  to  generalize  the  scientific  import  of  their  acts."  ^ 

After  the  new  Constitution  was  published  and  transmitted  to 
the  states,  there  began  a  determined  fight  over  its  ratification. 
A  veritable  flood  of  pamphlet  literature  descended  upon  the  coun- 


*  For  document  illustrating  process  of  ratification,  Readings,  p.  54. 

2  Readings,  p.  53. 

^  Burgess,  Political  Science  and  Constitutional  Law,  Vol.  I,  p.  105. 


The  Establishment  of  the  Federal  Constitution     59 

try,  and  a  collection  of  these  pamphlets  by  Hamilton,  Madison, 
and  Jay,  brought  together  under  the  title  of  The  Federalist  — 
though  clearly  a  piece  of  campaign  literature  —  has  remained  a 
permanent  part  of  the  contemporary  sources  on  the  Constitution 
and  has  been  regarded  by  many  lawyers  as  a  commentary  second 
in  value  only  to  the  decisions  of  the  Supreme  Court.;"' Within 
a  year  the  champions  of  the  new  government  foxmd  themselves 
victorious,  for  on  June  21,  1788,  the  ninth  state.  New  Hampshire, 
ratified  the  Constitution,  and  accordingly  the  new  government 
might  go  into  effect  as  between  the  agreeing  states.  Within  a 
few  weeks,  the  nationaUst  party  in  Virginia  and  New  York 
succeeding  in  winning  these  two  states,  and  in  spite  of  the  fact 
that  North  Carolina  and  Rhode  Island  had  not  yet  ratified  the 
Constitution,  Congress  determined  to  put  the  instrument  into 
effect  in  accordance  with  the  recommendations  of  the  convention. 
Elections  for  the  new  government  were  held;  the  date  March  4, 
1789,  was  fixed  for  the  formal  establishment  of  the  new  system; 
Congress  secured  a  quorum  on  April  6;  and  on  April  30,  Wash- 
ington was  inaugurated  at  the  Federal  Hall  in  Wall  Street,  New 
York. 


CHAPTER  IV 

THE  EVOLUTION  OF  THE  FEDERAL  CONSTITUTION 

If  we  use  the  term  "Constitution"  in  the  narrow  sense  as 
including  only  the  provisions  of  the  written  instrument  itself, 
the  history  of  its  development  would  be  brief;  but  such  a  re- 
striction of  the  term  would  be  sheer  formalism,  and  a  history 
based  upon  such  an  interpretation  would  be  utterly  misleading. 
For  constitutional  law,  as  Professor  Dicey  points  out,  includes 
I  all  the  fundamental  rules  which  directly  or  indirectly  affect  the 
I  distribution  and  exercise  of  sovereign  power;  it  includes  among 
I  other  things  the  laws  which  define  the  suffrage,  regulate  the 
prerogatives  of  the  chief  magistrate,  prescribe  the  form  of  the 
legislature,  and  determine  the  structure  and  functions  of  the 
hierarchy  of  officials.  A  comparison,  therefore,  of  the  existing 
body  of  law  and  custom  relative  to  such  matters  with  that  ob- 
taining in  the  United  States  on  the  morning  when  Washington 
took  the  oath  of  office  in  Wall  Street  reveals  most  astonishing 
changes.  Only  fifteen  new  clauses,  it  is  true,  have  been  added 
,  by  way  of  amendment  to  the  written  dociunent,  but  Congress 
'  has  filled  up  the  bare  outline  by  elaborate  statutes;  party  opera- 
tions have  altered  fundamentally  the  spirit  and  working  of  much 
of  the  machinery;  official  practice  has  set  up  new  standards  from 
time  to  time;  and  the  Supreme  Court,  by  generous  canons  of 
interpretation,  has  expanded,  in  ways  undreamed  of  by  the 
Fathers,  the  letter  of  the  law.  In  fact,  the  customs  of  our  Con- 
stitution form  as  large  an  element  as  they  do  in  the  English  con- 
stitution. A  correct  appreciation  of  the  evolutionary  character 
of  the  federal  system  is,  therefore,  necessary  for  a  true  under- 
standing of  the  genius  of  the  American  poUtical  institutions. 

The  Federal  Amending  Process 

The  most  obvious  changes  in  our  Constitution  are,  of  course, 

\    those  that  have  been  effectedJi^L^the  amendments,  all  of  which 

are  to  be  understood  in  connection  with  the  historical  circum- 

60 


(L. 


The  Evolution  of  the  Federal  Constitution  (  /'  6r 

stances  that  called  them  into  existence.  The  system  of  amend- 
ment provided  by  the  framers  of  the  Constitution,  while  very 
simple  in  its  nature,  requires  such  extraordinary  majorities 
both  for  initiation  and  ratification  that,  in  practice,  with  the 
exception  of  the  first  eleven  articles,  no  change  has  been  made 
save  under  circumstances  of  a  serious  character. 

There  are,  in  reality,  four  possible  ways  of  amending  the  Con- 
stitution,  although  in  practice  only  One  has  been   used.     A 
proposition  to  amend  may  originate  in  Congress,  on  the  approval 
of  two- thirds  of  both  houses,  ancT  may  be  ratified  by  the~concur- 
rence  of  the  legislatures,  or  of  conventions,  as  Congress  may 
determine,  in  tTifee-fourths  of  the  states.  vOn  the  other  hand,     -*" 
Congress,  on  the  application  of  the  legislatures  of  two- thirds  of  -2^ 
the  states,  must  call  a  national  convention  for  the  purpose  of  Ql, 
drafting  amendments  which  may  be  ratified  by  conventions,  or  "^7^/ 
by  legislatures  in  three-fourths  of  the  states.     The  composition 
of  the  national  and  state  conventions,  the  procedure  to  be  fol- 
lowed by  the  state  legislatures  in  passing  upon  amendments, 
and  numerous  other  questions^  are  left  unsettled  by  the  brief 
article  in  the  Constitution,^  but  it  is  to  be  presumed  that  Congress 
may  make  such  reasonable  elaborations  as  it  may  see  fit. 

On  the  occasions  in  which  the  federal  Constitution  has  been 
amended,  Congress  has  been  very  brief  in  its  provisions.^  A 
proposition  for  an  amendment  is  submitted  by  a  resolution  in  the 
following  form:  "Resolved  by  the  Senate  and  the  House  of 
Representatives  of  the  United  States  of  America  in  Congress 
assembled,  two-thirds  of  both  houses  concurring.  That  the  follow- 
ing article  be  proposed  to  the  legislatures  of  the  several  states  as 
an  amendment  to  the  Constitution  of  the  United  States  which 
when  ratified  by  three-fourths  of  the  said  legislatures  shall  be 
valid  as  part  of  the  said  Constitution."  The  states  are  then  left 
to  their  own  devices  in  approving  or  rejecting  the  proposal, 
Congress  merely  directing  that  "Whenever  official  notice  is 
received  at  the  Department  of  State  thaC  any  amendment 
proposed  to  the  Constitution  of  the  United  States  has  been 
adopted,  according  to  the  provisions  of  the  Constitution,  the 
Secretary  of  State  shall  forthwith  cause  the  amendment  to  be 
published  in  the  newspapers  authorized   to  promulgate  laws, 

*  Burgess,  Poliiical  Science  and  Constitutional  Law,  Vol.  I,  p.  146. 
'  See  Readings,  pp.  56  ff. 


62  American  Government  and  Politics 

with  his  certificate  specifying  the  states  by  which  the  same  may 
have  been  adopted,  and  that  the  same  has  become  valid,  to  all 
intents  and  purposes,  as  a  part  of  the  Constitution  of  the  United 
States." 

The  requirement  of  the  approval  of  an  exceptionally  large 
number  of  states  and  the  principle  of  allowing  states  equal  weight, 
regardless  of  their  population  or  wealth,  has  been  the  subject 
of  much  adverse  criticism,  from  the  protest  of  Patrick  Henry, 
which  we  have  noted,  down  to  the  objections  of  the  most  re- 
cent commentators.  Professor  Burgess  makes  an  exceptionally 
powerful  argument  against  the  federal  amending  system:  ''When 
I  reflect  that,  while  our  natural  conditions  and  relations  have 
been  requiring  a  gradual  strengthening  and  extension  of  the 
powers  of  the  central  government,  not  a  single  step  has  been 
taken  in  this  direction  through  the  process  of  amendment  pre- 
scribed in  that  article,  except  as  the  result  of  civil  war,  I  am  bound 
to  conclude  that  the  organization  of  the  sovexeiga4)QY^.er  within 
the  Constitution  has  failed  to  accompTisKTthe  purpose  for  which 
jit  was  constructed.  .  .  .  When  a  state  must  have  recourse  to 
war  to  solve  the  internal  questions  of  its  own  politics,  this  is 
indisputable  evidence  that  the  law  of  its  organization  within  the 
constitution  is  imperfect;  and  when  a  state  cannot  so  modify  and 
amend  its  constitution  from  time  to  time  as  to  express  itself 
truthfully  therein,  but  must  writhe  under  the  bonds  of  its  con- 
stitution from  time  to  time  until  it  perishes  or  breaks  them 
asunder,  this  is  again  indisputable  evidence  that  the  law  of  its 
organization  within  the  constitution  is  imperfect  and  false.  .  .  . 
When  in  a  democratic  political  society,  the  well-matured,  long, 
and  deliberately  formed  will  of  the  undoubted  majority  can  be 
persistently  and  successfully  thwarted,  in  the  amendment  of  its 
organic  law,  by  the  will  of  the  minority,  there  is  just  as  much 
danger  to  the  state  from  revolution  and  violence  as  there  is  from 
the  caprice  of  the  majority  where  the  sovereignty  of  the  bare 
majority  is  acknowledged."  ^ 

The  extraordinary  majorities  required  for  the  initiation  and 
ratification  of  amendments  have  resulted  in  making  it  practically 
impossible  to  amend  the  Constitution  under  ordinary  circum- 
stances, and  it  must  be  admitted  that  only  the  war  power  in  the 

^  Political  Science  and  Constitutional  Law,  Vol.  I,  pp.  150  £f. 


The  Evolution  of  the  Federal  Constitution       63 

ands  of  the  federal  government  secured  the  passage  of  the 
great  clauses  relating  to  slavery  and  civil  rights.  An  observant 
scholar,  Professor  J.  Allen  Smith,  has  estimated  that  some 
twenty-two  hundred  amendments,  including  popular  election 
of  Senators,  direct  election  of  the  President,  and  legislative 
control  over  the  judiciary,  have  been  proposed  since  the  forma- 
tion of  the  Constitution,  and  have  met  defeat.^  Only  one  since 
1870  —  the  pending  Sixteenth  Amendment  —  has  secured  the  re- 
quisite two-thirds  majority  in  the  House  and  Senate,  and  it  is  by 
no  means  certain  that  a  sufficient  number  of  ratifications  will  be 
obtained.  Professor  Smith  also  estimates  that,  on  the  basis  of 
the  last  census,  one  forty-fourth  of  the  population  distributed  so 
as  to  constitute  a  majority  in  the  twelve  smallest  states  could 
prevent  the  ratification  of  a  proposed  amendment,  even  after 
it  had  got  the  requisite  two-thirds  vote  in  both  Houses  of  Con- 
gress. 

The  Adoption  of  Amendments  I -XV  to  the  Constitution 

The  first  ten  articles  of  amendment  to  the  Constitution  were 
adopted  so  closely  after  the  ratification  of  the  original  instrument 
that  they  may  be  deemed  almost  a  part  of  it.  During  the  struggles 
which  occurred  in  many  states  over  the  acceptance  of  the  new 
plan  of  government,  it  was  manifest  that  a  great  deal  of  the  op- 
position to  it  was  based  on  the  absence  of  any  provisions  expressly 
safeguarding  individual  rights  against  the  action  of  the  federal  ^^ 
government.  Jefferson,  who  was  in  Paris  at  the  time  the  con- 
vention finished  its  work,  wrote  to  a  friend  in  Virginia  that  he 
wished  four  states  would  withhold  ratification  until  a  declaration 
of  rights  could  be  annexed,  stipulating  "freedom  of  religion, 
freedom  of  the  press,  freedom  of  commerce  against  monopoHes, 
trial  by  jury  in  all  cases,  no  suspensions  of  habeas  corpus,  no 
standing  armies."  ^  Most  of  the  state  constitutions  had  pro- 
vided such  limitations  on  their  governments,  and  there  was  evi- 
dently a  desire  on  the  part  of  many,  who  otherwise  approved  the 
Constitution,  to  see  the  ancient  doctrines  on  private  rights 
embodied  in  it.     Seven  of  the  ratifying  state  conventions  even 

^  The  Sp'irit  of  American  Government,  1907,  pp.  46  ff. 
^  Quoted  in  Curtis,  Constitutional  History  of  the  United  States  (1889), 
Vol.  I,  p.  669,  note. 


64  American  Government  and  Politics 

put  their  wishes  in  the  concrete  form  of  a  total  of  one  hundred 
and  twenty-four  articles  of  amendment  to  be  added  to  the 
Constitution/ 

In  The  Federalist,  Hamilton  argued  ably  that  such  provisions 
were  superfluous  and  even  dangerous,  because  they  contained 
various  exceptions  to  power  not  actually  granted,  and  would 
thus  afford  a  colorable  pretext  to  claim  more  than  was  granted. 
"For,"  he  contended,  "why  declare  that  things  shall  not  be  done  I 
which  there  is  no  power  to  do?  Why,  for  instance,  should  it  be  \ 
said,  that  the  liberty  of  the  press  shall  not  be  restrained,  when  no 
power  is  given  by  which  restrictions  may  be  imposed?  I  will 
not  contend  that  such  a  provision  would  confer  a  regulating 
power;  but  it  is  evident  that  it  would  furnish,  to  men  disposed 
to  usurp,  a  plausible  pretence  for  claiming  that  power.  They 
might  urge  with  a  semblance  of  reason  that  the  Constitution 
ought  not  to  be  charged  with  the  absurdity  of  providing  against 
the  abuse  of  an  authority  which  was  not  given,  and  that  the 
provision  against  restraining  the  liberty  of  the  press  afforded  a 
clear  implication  that  a  right  to  prescribe  proper  regulations  con- 
cerning it  was  intended  to  be  vested  in  the  national  government."  ^ 

This  very  plausible  argument  was  met  with  great  cogency 
by  Madison,  introducing  the  proposed  amendments  in  Congress 
in  June,  1789;  and  the  history  of  the  Alien  and  Sedition  laws 
later  bore  out  the  contentions  he  advanced.  He  admitted  that 
the  new  government  was  limited  to  certain  particular  objects, 
but  pointed  out  that  even  within  the  most  narrowly  circumscribed 
limits  the  government  would  have  a  discretionary  power  liable 
to  abuse,  and  furthermore  that  this  abuse  was  all  the  more  prob- 
able in  view  of  the  express  provision  that  Congress  could  make 
all  laws  necessary  and  proper  for  carrying  into  execution  the 
powers  expressly  vested  in  the  government  of  the  United  States. 
In  support  of  this,  Madison  cited  a  single  instance:  "The  General 
Government  has  a  right  to  pass  all  laws  which  shall  be  necessary 
to  collect  its  revenue;  the  means  of  enforcing  the  collection  are 
within  the  direction  of  the  legislature;  may  not  general  warrants 
lof  arrest]  be  considered  necessary  for  the  purpose,  as  well  as  for 
some  purposes  which  it  was  supposed,  at  the  framing  of  their 

'  Ames,  Proposed  Amendments  to  the  Constitution  of  the  United  States, 
pp.  183  ff. 

^  The  Federalist,  No.  LXXXIV. 


The  Evolution  of  the  Federal  Constitution        65 

constitutions,  the  state  governments  had  in  view?  If  there  was 
any  reason  for  restraining  the  state  governments  from  exercising 
this  power,  there  is  like  reason  for  restraining  the  federal  govern- 
I  ment."  ^  He  then  went  on  to  state  that  it  was  his  conviction 
that  such  a  measure  would  rally  large  numbers  to  the  cause  of 
Federalism,  and  that,  on  principles  of  amity  and  moderation, 
the  great  rights  of  mankind  secured  under  the  Constitution  ought 
to  be ,  expressly  declared.  After  a  delay  of  two  months,  the 
House  passed  seventeen  amendments,  whicji  were  reduced  to 
twelve  in  the  Senate,  slightly  modified  at  a  joint  conference  com- 
mittee, and  submitted  to  the  states,  by  two-thirds  vote  on  Septem- 
ber 25,  1789,  with  an  accompanying  resolution  to  the  effect 
that  it  had  been  done  to  extend  the  ground  of  public  confidence 
in  the  government  and  best  insure  the  beneficent  ends  of  its  insti- 
tution. Two  of  the  amendments  deaUng  with  apportionment 
and  payment  of  members  of  Congress  failed  to  receive  the  ap- 
proval of  the  requisite  number  of  states,  but  the  other  ten  were 
ratified  by  eleven  commonwealths,  Virginia  being  the  last  to 
add  her  sanction,  December  15,  1791. 

The  Eleventh  Amendment,  providing  that  the  judicial  power 
of  the  United  States  shall  not  extend  to  any  suit  in  law  or  equity,  1 
commenced  or  prosecuted  against  one  of  the  United  States  by  I 
citizens  of  another  state  or  by  citizens  or  subjects  of  any  foreign  ( 
state,  was  the  direct  outgrowth  of  a  judicial  decision  rendered 
by  the  Supreme  Court  in  the  case  of  Chisholm  v.  Georgia  in  1793. 
That  case  involved  the  question  as  to  whether  a  state  could  be 
sued  by  a  private  citizen;   and  the  champions  of  states'  rights 
stoutly  held  that  the  Supreme  Court  could  not  try  an  action  by 
a  citizen  against  a  "sovereign  state."    The  Court,  however,  held 
that  it  possessed  such  jurisdiction,  directed  the  service  of  papers 
on  the  governor  and  attorney-general  of  Georgia,  and  ordered 
that,  unless  the  state  appeared  in  due  form,  judgment  should  be 
entered  by  default. 

This  decision  instantly  aroused  the  indignation  of  the  advo- 
cates of  states'  rights.  The  decision  of  the  Court  was  reached  on 
February  18,  1793;  and  two  days  later  Senator  Sedgwick,  of 
Massachusetts,  introduced  into  Congress  the  proposed  amend- 
ment. The  Massachusetts  legislature  soon  afterward  declared 
the  power  exercised  by  the  Supreme  Court  "dangerous  to  the 
'  Annals  of  Congress,  Vol.  I,  pp.  440  fif. 


66  American  Government  and  Politics 

peace,  safety,  and  independence  of  the  several  states  and  repug- 
nant to  the  first  principles  of  a  Federal  government";  and  the 
Georgia  house  of  representatives  passed  an  act  providing  that 
any  official  who  attempted  the  enforcement  of  the  decision  should 
be  declared  guilty  of  felony  and  suffer  death  without  benefit  oi 
clergy  by  being  hanged.^  The  proposed  amendment,  which  was 
sent  to  the  states  by  Congress  in  1794,  received  the  requisite 
approval  of  three-fourths  of  the  states,  and  went  into  force  ir 
1798. 

Little  more  than  two  years  had  elapsed  after  the  ratification 
of  the  Eleventh  Amendment  before  a  more  serious  crisis,  in  the 
presidential  election  of  1800,  demonstrated  the  imperative  neces- 
sity of  reconstructing  the  section  of  the  Constitution  dealing  with 
the  balloting  of  the  electors  for  President.  The  original  system, 
which  was  prepared  without  taking  into  account  the  rise  of  parties 
and  their  effect  on  the  framework  of  the  government,  provided 
that  the  presidential  electors  chosen  in  each  state  should  cast 
their  ballots  for  two  persons,  without  designating  which  was  tc 
be  President  or  Vice-President;  and  then  added:  "The  persor 
having  the  greatest  number  of  votes  shall  be  President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  appointed 
and  if  there  be  more  than  one  who  have  such  majority,  and  have 
an  equal  number  of  votes,  then  the  House  of  Representatives 
shall  immediately  choose  by  ballot  one  of  them  for  President 
and  if  no  person  have  a  majority,  then,  from  the  five  highest  or 
the  list,  the  said  House  shall  in  like  manner  choose  the  President,' 
the  representation  from  each  state  having  one  vote. 

In  the  election  of  1800,  Jefferson  and  Burr  received  seventy 
three  votes  each,  and  the  latter,  willing  to  defeat  what  he  knev^ 
to  be  the  real  wishes  of  his  party,  sought  to  secure  his  election  tc 
the  presidency  by  gaining  enough  votes  from  the  Federalists  ir 
the  House  of  Representatives  where  the  election  had  been  throwr 
under  the  constitutional  provision.  Fortunately  his  design  wsa 
frustrated;  but  the  outcome  of  the  contest,  and  the  low  intrigue 
which  accompanied  it,  revealed  the  necessity  of  requiring  the 
electors  to  designate  the  persons  for  whom  they  cast  their  ballots 
as  President  and  Vice-President  respectively. 

^  Professor  H.  V.  Ames,  in  his  valuable  collection,  State  Documents  on  Federa, 
Relations,  pp.  7  ff.,  gives  this  act  and  citations  of  authorities. 


The  Evolution  of  the  Federal  Constitution       67 

Accordingly  an  amendment  to  effect  this  reasonable  change 
was  introduced  into  the  House  of  Representatives  in  February, 
1802.*  The  arguments  advanced  in  favor  of  it  were  simple  and 
direct:  the  suffrages  given  for  the  election  of  the  agents  of  gov- 
ernment ought  to  be  an  expression  of  public  will;  any  provision 
liable  to  lead  to  the  appointmenj:  of  a  person  not  originally  in- 
tended by  a  majority  of  the  electors  defeats  the  first  principles 
of  the  American  system;  and  finally,  what  more  serious  calamity 
could  be  imagined  than  a  continued  division  of  the  House  of 
Representatives  —  in  case  the  choice  should  fall  there  —  which 
might  result  in  indefinite  delay  of  a  presidential  election  —  by 
no  means  an  impossible  contingency.^  The  arguments  against 
the  proposal  were  singularly  weak:  it  was  urged  in  favor  of  the 
smaller  states  that  they  would  have  a  better  chance  of  securing 
one  or  the  other  of  the  offices  if  the  existing  system  was  retained, 
because  it  threw  contested  elections  into  the  House  of  Repre- 
sentatives where  all  states  had  an  equal  vote;  and  finally  it 
would  destroy  the  original  design  of  having  two  of  the  ablest  char- 
acters chosen  without  discrimination  for  the  high  office.^  Never- 
theless, the  proposal,  which  received  the  requisife  majority  in 
Congress  and  then  went  to  the  states  in  December,  1803,  was 
promptly  ratified  and  declared  in  force  on  September  25,  1804, 
as  the  Twelfth  Amendment. 

/  An  eventlul  half  century  now  passed  before  any  further  changes 
were  made  in  the  law  of  the  Constitution.  Vast  territories 
stretching  to  the  Pacific  were  acquired;  nearly  a  score  of  states 
were  added  to  the  U^nion;  the  development  of  industries  and  the 
extension  of  railways  began  to  work  a  marvellous  transforma- 
tion in  the  economic  system  of  the  country;  state  constitutions 
were  remodelled  over  and  over,  showing  at  each  successive  decade 
an  advance  in  democratic  ideas  of  government;  practices  of 
every  kind  stretched  beyond  recognition  many  of  the  original 
terms  of  the  written  instrument;  and  yet  no  changes  could  be 
made  in  the  formal  rules  of  the  document  itself  until,  in  the  hot 
struggles  of  the  Civil  War,  the  whole  political  system  was  thrown 
into  the  melting  pot. 

In  March,  1862,  less  than  a  year  after  the  opening  of  the 

*  Such  an  amendment  had  really  been  proposed  earUer. 
^  Annals  of  Congress,  8th  Cong.,  ist  Sess.,  pp.  490  ff. 
'  Ibid.,  8th  Cong.,  ist  Sess.,  pp.  691  ff. 


68  American  Government  and  Politics 

conflict  between  the  states,  Congress  abolished  slavery  in  th 
territories,  the  following  month  slaves  were  emancipated  in  th' 
District  of  Columbia,  and  in  September,  1862,  shortly  after  th 
check  administered  to  Lee  at  the  battle  of  Antietam,  Lincoli 
issued  his  proclamation  announcing  that  the  slaves  in  thosi 
states  which  had  not  returned  to  their  allegiance  by  January  i 
1863,  would  be  treated  as  free. 

However,  the  Proclamation  of  Emancipation,  which  duly  wen 
into  effect,  might  not  of  its  own  force  have  prevented  the  res 
toration  of  slavery  by  the  Confederate  States  if  they  were  brough 
back  into  the  Union;  and  accordingly,  in  December,  1863,  simul 

Jtaneous  resolutions  were  introduced  into  the  House  and  Senate 
providing  for  an  amendment  forever  prohibiting  slavery.  In  i 
speech  delivered  in  the  Senate  in  support  of  the  amendment 
Mr.,  Trumbull  put  the  situation  concisely:  "In  my  judgment 
the  only  effectual  way  of  ridding  the  country  of  slavery,  and  s< 
that  it  cannot  be  resuscitated,  is  by  an  amendment  of  the  Consti 
tution  forever  prohibiting  it  within  the  jurisdiction  of  the  Unitec 
States.  This  amendment  adopted,  not  only  does  slavery  cease 
but  it  can  never  be  reestabhshed  by  state  authority  or  in  an] 
other  way  than  by  amending  the  Constitution.  Whereas,  i 
slavery  should  now  be  aboHshed  by  act  of  Congress  orprocla 
mation  of  the  President,  assuming  that  either  had  the  power  t( 
do  it,  there  is  nothing  in  the  Constitution  to  prevent  any  stat( 
from  reestablishing  it.  ...  It  is  very  generally  conceded,  ! 
believe,  by  men  of  all  political  parties,  that  slavery  is  gone,  tha 
the  value  of  slavery  is  destroyed  by  the  rebellion.  What  objec 
tion  then  can  there  be  on  the  part  of  any  one  in  the  present  stat< 
of  public  feeling  in  the  country,  to  giving  the  people  an  oppor 
tunity  to  pass  on  the  question?"  ^ 

It  was  apparent,  however,  to  every  one  that  pressure  woulc 
have  to  be  exercised  on  the  conquered  southern  states  in  orde] 
to  secure  the  requisite  three-fourths  for  the  adoption  of  the  amend 
ment.  This  was  a  ground  for  the  objections  urged  by  Mr 
Pendleton  in  the  House  of  Representatives  against  the  passag( 
of  the  resolution.  "It  is  impossible,"  he  declared,  "that  the 
amendment  proposed  should  be  ratified  without  a  fraudulent 
use  —  I  select  the  term  advisedly  —  without  a  fraudulent  us( 

^  Congressional  Globe,  38th  Cong.,  ist  Sess.,  p.  1313. 


The  Evolution  of  the  Federal  Constitution       69 

?;of  the  power  to  admit  new  states  or  a  fraudulent  use  of  the  mili- 
|;tary  power  of  the  federal  government  in  the  seceded  states. 
There  are  thirty-five  states.  Twenty-seven  are  necessary  to 
ratify  this  amendment.  There  are  nineteen  free  states.  Sup- 
pose you  get  them  all,  where  do  you  get  the  others?  .  .  .  Will 
the  gentlemen  call  on  the  southern  states  to  furnish  the  requisite 
number?  If  these  states  are  to  vote  in  their  present  condition, 
it  would  be  a  broad  farce,  if  it  were  not  a  wicked  fraud."  ^  Curi- 
ously enough,  it  was  even  urged  against  the  measure  that  "  neither 
three-fourths  of  the  states,  nor  all  the  states  save  one,  can  abolish 
slavery  in  that  dissenting  state,  because  it  lies  within  the  domain 
reserved  entirely  to  each  state  for  itself  and  upon  it  the  other 
states  cannot  enter." 

So  great  was  the  opposition  to  the  resolution  that  it  failed  at 
first  to  secure  the  requisite  two-thirds  in  the  House  of  Representa- 
tives; but  Lincoln  in  his  message  of  December  6,  1864.  after  his 
reelection,  warned  Congress  that  it  was  only  a  question  of  time 
until  slayery  would  have  to  go.  Speaking  of  the  election,  he 
said,  "It  is  the  voice  of  the  people  now  for  the  first  time  heard 
upon  the  question.  In  a  great  national  crisis  like  ours,  unanim- 
ity of  action  among  those  seeking  a  common  end  is  very  desir- 
aWe.  Yet  no  approach  to  such  unanimity  is  attainable  unless 
soAie  deference  is  paid  to  the  will  of  the  majority  simply  because 
it^  the  will  of  the  majority."^  This  appeal  was  successful,  and 
r  a  long  and  exciting  debate  the  amendment  was  passed  at 
opening  of  1865.  It  was  then  sent  out  to  the  states  and 
fied  by  twenty-seven  of  them,  among<  which  were  Nevada, 
ich  had  been  admitted  for  the  purpose,  and  several  southern 
states,  acting  under  the  pressure  of  the  fedemLmilitary  author-  / 
ity.  The  Thirteenth  Amendment,  thus  carried  through,  wasv^ 
4eclaiedJxiiQrce_bjJJ;e_SgctetaTj^^ 

The  radical  Republicans,  headed  by  the  indomitable  Thaddeus 
Stevens,  were  not  content  with  abolishing  slavery;  they  were 
determined  also  to  give  to  the  newly  emancipated  negroes  all 
the  civil  rights  which  the  whites  enjoyed,  to  impose  disabilities 
on  certain  secessionists,  and  to  secure  the  validity  of  the  federal 


'  Congressional  Globe,  p.  2993;  see  below,  chap,  x,  for  Dana's  account  ot  the 
method  employed  by  Lincoln  in  securing  the  adoption  of  the  Thirteenth 
Amendment. 

^  Richardson,  Messages  and  Papers  of  the  President,  Vol.  VI,  p.  252. 


Jo  American  Government  and  Politics 

war  debt.  By  the  Civil  Rights  Act  of  April,  1866,  they  sough 
to  remove  all  the  incidents  of  slavery  and  secure  for'negroe 
equality  before  the  law;  but  reaUzing  that  a  mere  act  could  b 
repealed  at  any  time  by  a  subsequent  Congress,  they  decided  t< 
place  the  principles-^- dlvillibeity,  high  above  tl^exeaxJiiiLpart; 
fact4©fts-by  securely  establishing  them  in  the  Constitution  itseli 
Accordingly  in  April,  1866,  Stevens  introduced  the  propose( 
'^  Fmirtirrnth  \  mrndmonti '  into  the  House  with  a  lengthy  speed 
in  advocacy.  He  said  he  could  hardly  believe  that  any  on 
would  question  the  justice  of  the  first  section  prohibiting  th 
states  from  abridging  the  privileges  and  immunities  of  citizen 
and  depriving  them  of  life,  liberty,  or  property  without  due  pro 
cess  of  law;  the  second  section,  designed  to  reduce  the  numbe 
of  representatives  apportioned  to  any  southern  state  excludiuj 
negroes  from  the  vote,  he  regarded  as  the  best  means  of  forcini 
enfranchisement  on  the  South;  and  as  for  the  third  and  fourtl 
sections,  he  declared  only  a  "rebel"  would  object  to  them^ 
When  it  was  contended  by  the  opposition  that  the  proposec 
amendment  would  sap  the  foundations  of  the  government 
destroy  the  fundamental  principles  of  the  federal  system,  an( 
consolidate  everything  into  one  imperial  despotism,^  the  ma 
jority  frankly  admitted  that  it  was  their  intention  to  place  certaii 
great  doctrines  of  private  rights  under  the  sure  protection  o 
the  central  government.  In  June,  1866,  they  submitted  th 
amendment  to  the  approval  of  the  states.  By  refusing  to 
admit  certain  southern  states  until  they  had  accepted  this  radi 
alteration  in  our  political  system,  the  requisite  number  of  ra 
cations  was  at  length  secured;  and  the  Fourteenth  Amendm^ 
was  promulgated  by  the  Secretary  of  State  in  July,  1868. 

This  indirect  method  of  securing  the  vote  to  the  negroe 
through  the  threat  to  reduce  the  representation  of  any  stati 
excluding  them  from  the  suffrage,  it  was  feared,  would  not  bi 
effective  enough  in  practice;  and  the  Repubhcans  accordingly 
decided  to  complete  the  work  of  reconstruction  by  expressb 
forbidding  any  commonwealth  to  deprive  any  citizen  of  the  righ 
to  vote  on  account  of  race,  color,  or  previous  condition  of  ser 
vitude.     Some  of  the  northern  states  still  denied  the  franchise  t( 


^  See  Readings,  p.  393,  for  the  Amendment. 

^  Congressional  Globe,  39th  Cong.,  ist  Sess.,  pp.  2459  fiE.      ^  Ihid.,  p.  2538 


tn 

1 


The  Evolution  of  the  Federal  Constitution         71 

negroes,  and  this  was  a  standing  reproach  to  the  reformers  who 
insisted  on  granting  this  right  in  the  South  in  opposition  to  the 
known  wishes  of  the  whites.  It,  therefore,  seemed  expedient 
to  some,  and  to  others  abstractly  just,  to  prevent  political  dis- 
crimination against  the  negro  throughout  the  entire  Union;  and  / 
to  achieve  this  end,  the  Fifteenth,  and  last,  Arnendment  wa^'vy 
passed  by  Congress  in  February,  1869,  and  declared  ratified  on 
March  30,  1870.  Thus  was  ended  the  formal  revolution  wrought 
in  our  political  system  by  the  Civil  War.^ 

In  spite  of  the  fact  that  no  new  amendment  has  been  adopted 
since  1870,  every  session  of  Congress  has  produced  a  large  crop 
of  amendatory  proposals,  only  a  few  of  which  are  ever  seriously 
considered.  For  example,  in  the  Sixtieth  Congress,  there  were  -^ 
brought  forward  in  the  House  of  Representatives  amendment 
resolutions  relative  to  prohibition,  popular  election  of  Supreme 
Court  justices,  uniform  laws  for  marriage  and  divorce,  the  ini- 
tiative and  referendum,  employers'  Uability,  and  many  other 
matters,  but  none  of  them  succeeded  in  securing  the  requisite 
number  of  votesT"  More  than  two-thirds  of  the  states  have  now 
joined  in  proposing  an  amendment  estabHshing  popular  election  • 
of  Senators,  but  it  remains  to  be  seen  whether  Congress  will  act 
on  the  matter. 

The  only  amendment  proposal  which  has  received  the  requi- 
site two-thirds  majority  of  both  Houses,  since  the  adoption  of 
the  Fifteenth  Amendment,  is  the  following  resolution  authoriz- 
ing the  levy  of  an  income  tax,  passed  by  Congress,  in  July,  1909, 
at  a  special  session: 

"Resolved  by  the  Senate  and  House  of  Representatives  of  the 
United  States  in  Congress  assembled  (two  thirds  of  each  House  con- 
curring therein),  that  the  following  article  is  proposed  as  an  amend- 
ment to  the  Constitution  of  the  United  States,  which,  when  ratified 
by  the  legislatures  of  three-fourths  of  the  several  states  shall  be  vaHd 
to  all  intents  and  purposes  as  a  part  of  the  Constitution: 

Article  XVI.    That  Congress  shall  have  power  to  lay  and  collect  \ 
taxes  on  incomes,  from  whatever  source  derived,  without  apportion- 
ment among  the  several  states,  and  without  regard  to  any  census  or 
enumeration."  ^ 

*  For  the  partisan  aspects  of  this  phase  of  our  history,  see  below,  chap.  vi. 
'  This  amendment  is  now  before  the  state  legislatures  and  up  until  the 
present  time  (March,  igio)  has  been  ratified  by  only  two  states. 


72  American  Government  and  Politics 

Statutory  Elaboration  of  the  Constitution 

It  would  be  a  mistake,  of  course,  to  confuse  the  formal  amend- 
ments, which  we  have  just  considered,  with  statutes,  especially 
in  the  matter  of  the  sanction  which  each  of  the  two  forms  of  law 
has  behind  it.  The  former  are  placed  beyond  the  reach  of  the 
legislature  by  an  extraordinary  process  of  enactment,  and  can  be 
abrogated  only  by  a  similar  process.  A  statute,  on  the  other 
hand,  is  made  by  Congress,  and  may  be  altered  or  repealed  at 
any  time  by  the  same  body  without  further  authority.  Never- 
theless, when  viewed  from  the  standpoint  of  content,  there  is  no 
real  intrinsic  difference  between  many  statutes  and  the  provi- 
sions of  the  Constitution  itself;  and,  if  we  regard  as  constitu- 
tional all  that  body  of  law  relative  to  the  fundamental  organiza- 
tion of  the  three  branches  of  the  federal  government,  —  legis- 
lative, executive,  and  judicial,  —  then  by  far  the  greater  portion 
of  our  constitutional  law  is  to  be  found  in  the  statutes.  At 
all  events,  whoever  would  trace,  even  in  grand  outKnes,  the 
evolution  of  our  constitutional  system  must  take  them  into 
account. 

Such,  for  instance,  are  the  laws  organizing  all  the  executive 
departments. which  have  grown  out  of  the  authority  conferred 
by  the  barest  mention  in  the  Constitution  of  the  facts  that  some 
appointments  maybe  made  by  the  "heads  of  departments," 
and  that  the  President  "may  require  the  opinion,  in  writing,  of 
the  principal  officer  in  each  of  the  executive  departments,  upon 
any  subject  relating  to  the  duties  of  their  respective  offices." 
To  take  another  example,  the  Twelfth  Amendment  is  scarcely 
more  important  than  the  statute  of  1887,  which  elaborates  it  in 
great  detail  by  providing  the  modes  of  counting  the  electoral 
votes  and  determining  controversies.  Indeed,  Senator  Garland, 
at  the  time,  declared  such  a  statute  amendatory  in  its  nature 
and  beyond  the  power  of  Congress.  Whether  the  statute  in 
question  is  one  which  the  f  ramers  of  the  Constitution  would  have 
deemed  within  the  letter  of  the  written  document  it  is  obviously 
impossible  to  determine;  it  may  quite  properly  be  regarded 
as  an  amendment  which  the  general  acceptance  of  the  nation 
allows  to  stand  in  force  as  a  mere  statute.  Such  reasoning  is  not 
without  justification,  and  finely  illustrates  the  shadowy  char- 
acter of  the  distinctions  between  constitutional  and  statute  law. 


The  Evolution  of  the  Federal  Constitution         ^i^ 

Again,  the  federal  statute  of  1866  ^  regulating  the  election  of 
Senators  by  the  state  legislatures  and  controlling  their  internal 
procedure  in  this  matter  may  be  regarded  as  constitutional  in 
character  in  so  far  as  it  links  itself  organically  with  the  provisions 
of  the  Constitution.  A  striking  and  curious  illustration  of  the 
way  in  which  the  federal  system  has  been  in  part  altered  by 
state  action  is  the  practice,  adopted  in  some  commonwealths,  of 
requiring  the  legislature  to  choose  for  the  United  States  Senate 
the  nominee  indicated  by  popular  vote  —  a  practice  undoubtedly 
contrary  to  the  letter  of  the  Constitution  and  to  the  intention 
of  the  framers. 

The  Custom  of  the  Constitution 

It  is  the  fashion  for  English  publicists  to  congratulate  their 
American  colleagues  on  the  simplicity  of  the  task  of  commenting 
on  a  written  constitution  as  compared  with  the  complicated  task 
of  unravelling  from  fluctuating  party  customs  the  mysteries  of 
the  Efiglish  political  system.  ''Whatever  may  be  the  advan- 
tages of  a  so-called  'unwritten'  constitution,"  declares  Professor 
Dicey,  "its  existence  imposes  special  difficulties  on  teachers 
bound  to  expound  its  provisions.  Any  one  will  see  that  this  is 
so  who  compares  for  a  moment  the  position  of  writers  such  as 
Kent  and  Story,  who  commented  on  the  Constitution  of  Amer- 
ica, with  the  situation  of  any  person  who  undertakes  to  comment 
on  the  constitutional  law  of  England.  When  these  distinguished 
jurists  delivered,  in  the  form  of  lectures,  commentaries  upon  the 
Constitution  of  the  United  States,  they  knew  precisely  what  was 
the  proper  subject  of  their  teaching  and  what  was  the  proper 
mode  of  deaUng  with  it.  The  theme  of  their  teaching  was  a 
definite  assignable  part  of  the  law  of  their  country;  it  was  re- 
corded in  a  given  document  to  which  all  the  world  had  access, 
namely,  '  the  Constitution  of  the  United  States  established  and 
ordained  by  the  People  of  the  United  States.'  "  ^ 

Now,  as  a  matter  of  simple  fact,  any  one  who  relied  upon  the 
commentaries  of  these  distinguished  jurists  for  a  knowledge 
of  the  actual  government  of  the  United  States  would  not  pene- 
trate beycnd  the  outer  boundaries  of  the  subject.  For  example, 
Kent  dismisses  the  topic  of  the  Speaker  of  the  House  of  Repre- 
sentatives with  this  sentence:    "The  House  of  Representatives 

'  See  Readings,  p.  21.      ^  The  Law  and  Custom  of  the  Constitution,  chap.  i. 


74  American  Government  and  Politics 

choose  their  own  Speaker."  This  statement  throws  as  much 
light  on  our  federal  government  as  the  observation  that  the 
prime  minister  for  the  time  being  is  the  First  Lord  of  the  Treasury 
throws  on  the  British  cabinet  system.  Surely  no  commentator 
on  the  British  constitution  would  leave  out  of  account  the  entire 
cabinet  system  and  its  vital  relation  to  party  practices. 

Indeed,  the  most  complete  revolution  in  our  political  system 

i  has  not  been  brought  about   by  amendments  or   by  statutes, 

I   but  by  the  customs  of  political  parties  in  operating  the  ma- 

'  ^/ chinery  of  the  government.^     So  radical  is  this  transformation 

in  the  letter  and  spirit  of  the  system  of  1789,  and  so  completely 

does  it  extend  to  the  utmost  extremities  of  that  system,  that 

^  it  seems  necessary  to  devote  special  chapters  to  an  examinatior 

r^t  of  its  diverse  aspects.^    A  few  examples,  however,  will  be  giver 

I     here  to  illustrate  concretely  the  ways  in  which  party  practices 

Y  transform  the  written  law. 

J  I.  The  Constitution  tells  us  that  the  President  is  elected  by 
dector^&jcbDsen  as  the  legislatures  of  the  states  shall  see  fit.  Ir 
practice  a  few  candidates  are  selected  at  national  party  con- 
ventions,—  institutions  wholly  unknown  to  federal  law;  the 
electors  are  figureheads  selected  by  the  parties  and  bounc 
to  obey  party  commands;  and  the  voters  merely  have  the  righl 
to  choose  between  the  candidates  nominated. 

2.  The  Constitution  informs  us  that  the  Senators  are  elected 
by  the  legislatures  of  the  states.  In  practice  they  are  choser 
at  legislative  caucuses  of  majority  parties,  or,  in  some  common- 
wealths, through  a  system  of  direct  nomination. 
^^-"3.  The  Constitution  states  that  the  Speaker  is  chosen  by  the 
^  House  of  Representatives.  In  fact,  he  is  selected  by  a  caucus 
of  the  majority  members  of  the  House. 

4.  In  the  view  of  the  Constitution  the  Speaker  is  the  impartial 
presiding  ofl&cer  of  the  House.  In  fact,  he  is  the  leader  of  the 
majority  party  in  that  body. 

5.  The  Constitution  informs  us  that  revenue  bills  must 
j  originate  in  the  lower  House.  In  plain  fact,  revenue  bills  origi- 
j  nate  in  the  Senate  quite  as  much  as  in  the  House,  although  the 
j  latter  body  nominally  exercises  its  prerogative.^ 

*  On  this  important  subject,  see  Goodnow,  Politics  and  Administration. 

*  Chaps,  vi,  vii,  and  xxx,  and  Readings,  chaps,  vi,  vii,  and  xxx. 
'  See  below,  "chap,  xviii. 


The  Evolution  of  the  Federal  Constitution         75 

ji  6.  The  Constitution  says  very  little  about  legislative  pro- 
licedure,  but  the  whole  spirit  and  operation  of  Congress  depend 
jmpon  the  rules,  organization  of  committees,  and  agreements 
among  the  leaders  of  the  majority  party. 

Closely  related  to  the  alterations  introduced  into  the  original 
system  by  party  methods  are  the  changes  wrought  in  the 
presidential  office  by  the  exig^engjgs  of  party  leadership.  This 
aspect  of  our  constitutional  evolution  is  regarded  by  some  as 
an  apparently  fortuitous  contingency  dependent  upon  the 
personality  of  the  President  and  the  circumstances  under  which 
he  carries  on  his  administration,  but  by  others  it  is  considered 
as  a  permanent  and  salutary  outcome  of  our  political  develop- 
ment. It  would  be  interesting  to  know,  at  all  events,  the  feelings 
that  would  be  entertained  by  a  member  of  the  federal  convention 
of  1787  if  he  gpuld  compare  the  deliberate  and  austere  adminis- 
tration of  Washington  with  that  of  Mr.  Roosevelt,  who  was  pre- 
eminently a  party  leader.  Through  his  personal  representative 
he  participated  in  the  gubernatorial  campaign  in  New  York 
in  1906;  he  aided  Congressman  Burton  in  his  contest  with  Mr. 
Johnson  for  the  mayoralty  of  Cleveland;  he  constantly  engaged 
in  multifarious  party  operations;  and  finally  he  was  chiefly  in- 
strumental in  selecting  his  own  successor.  Mr.  Taft  has  likewise 
declared  his  belief  in  the  duty  of  the  President  to  act  as  party 
leader  and  assume  party  responsibilities.^  It  requires  no  far 
stretch  of  the  imagination  to  believe  that  the  original  framers 
would  regard  the  recent  developments  as  entirely  beyond  their 
intentions.  This  is  not  meant  to  imply  any  criticism  of  Mr 
Roosevelt  or  his  policies,  but  it  shows  how  the  American  people 
are  actually  not  very  much  hampered  by  constitutional  theories 
in  the  presence  of  the  concrete  interests  and  problems  of  our 
time. 

Judicial  Expansion  of  the  Constitution 

While  there  is  a  large  and  eminently  respectable  school  of 
thinkers  who  maintain  that  the  courts  do  not  make  law,  it 
nevertheless  remains  a  fact  that  the  Supreme  Court  of  the  United 
States  has  on  several  occasions  expanded  the  written  instrument 
under  the  guise  of  an  interpretation.  Indisputable  evidence 
of  this  fact  is  offered  by  the  reversals  of  opinion  showing  that 

^  See  below,  chap.  x. 


76  American  Government  and  Politics 

either  in  one  case  or  the  other  the  Court  had  read  into  the  docu 
ment  ideas  which  it  did  not  contain.  Furthermore,  the  numerou! 
dissenting  opinions,  often  by  the  considerable  minority  of  fou: 
to  five,  lend  the  weight  of  eminent  authority  to  the  contentioi 
raised  in  many  quarters  that  certain  decisions  are  not  mer( 
applications  of  the  letter  and  spirit  of  the  Constitution  to  specifi( 
circumstances,  but  positive  additions  to  the  venerable  fabri( 
which  the  convention  constructed.  This,  of  course,  is  con 
troversial  ground,  but  a  few  illustrations  will  make  clear  wha 
is  meant  by  those  who  maintain,  without  any  intention  of  advers( 
criticism,  that  the  Supreme  Court  makes  constitutional  lav 
from  time  to  time  to  meet  the  demands  of  new  circumstances 
or  to  express  the  opinion  of  the  Court  as  to  what  ought  to  b( 
the  law.^ 

A  notable  instance  is  the  case  of  Chisholm  v.  Georgia,  men 
tioned  above,  in  which  the  Court  took  jurisdiction  over  a  suii 
against  a  state  by  a  citizen.  That  it  Was  not  the  intention  o 
the  states  at  the  time  of  the  ratification  to  confer  such  juris 
diction  is  evidenced  by  the  general  protest  which  went  up  againsi 
it  and  the  facihty  with  which  an  amendment  was  provided 
Furthermore,  Hamilton  in  The  Federalist  had  expressed  hi; 
belief  that  no  such  power  was  given  by  the  Constitution,  and  th( 
general  principles  of  law  up  to  that  time  seem  to  have  beer 
contrary  to  the  ruling  of  the  Court;  but  the  Court,  desiring  t( 
make  the  Constitution  a  broadly  national  instrument,  assumec 
jurisdiction  over  the  suit  against  Georgia.  A  more  notable 
case  was  that  of  Marbury  v.  Madison,  in  which  the  Court  decidec 
for  the  first  time  that  it  had  power  to  declare  invalid  statutes 
of  Congress  which  it  deemed  contrary  to  the  Xonstitution 
Whether  the  majority  in  the  convention  intended  to  bestow 
such  high  prerogative  on  the  federal  tribunal  is  a  matter  of  con- 
troversy. Certain  it  is  that  some  of  the  members,  notabl> 
Hamilton,  ascribed  such  a  power  to  the  Court;  but  no  express 
warrant  was  conveyed  by  the  document  itself,  and  there  is  some 
reason  for  holding  that  such  might  not  have  been  the  general 
intention  of  those  who  ratified  the  instrument.  Later  the  Court 
extended  the  clause  forbidding  any  state  to  pass  a  law  impairing 
the  obHgation  of  contract  to  cover  even  agreements  made  by 

^  Readings,  p.  62. 


The  Evolution  of  the  Federal  Constitution         'j^ 

the  states  themselves  in  the  form  of  charters  and  concessions, 
a  ruling  which,  however  expedient  from  the  standpoint  of  the 
protection  of  private  rights,  certainly  widened  the  meaning  of 
the  term  ''contract,"  as  generally  understood  at  the  time.^  To 
cite  a  more  recent  example:  until  the  acquisition  of  our  insular 
dependencies,  an  achievement  as  far  beyond  the  range  of  the 
vision  of  the  convention  of  1787  as  any  imaginable,  the  Court 
had  uniformly  ruled  that  the  provisions  safeguarding  individual 
liberty,  laid  down  in  the  first  ten  amendments,  restricted  the 
federal  authorities  everywhere,  in  the  government  of  territories 
as  well  as  in  the  districts  organized  into  states;  but  when  it 
became  apparent  that  such  practices  of  Anglo-Saxon  peoples 
as  indictment  and  trial  by  jury  were  not  applicable  to  peoples 
in  other  stages  of  culture  and  with  diverse  historical  antecedents, 
the  Court,  by'  a  process  more  subtle  than  logical,  found  a  way 
of  freeing  the  administration  of  the  island  dependencies  from -4 
some  limitations  that  had  hitherto  applied  in  the  government  of 
territories.^ 

The  pages  that  follow  describing  the  organization  and  opera- 
tion of  our  system  of  government,  federal  and  state,  are  in  a  large 
part  but  a  commentary  on  the  ways  in  which  the  Constitution  — 
"the  solemn  determination  of  the  people  enacting  a  fundamental 
law"  —  has  been  transformed  in  the  hands  of  those  who  from 
generation  to  generation  have  exercised  poHtical  power.  Over 
and  over  the  plain  record  of  political  practices  and  official  opera- 
tions will  bear  eloquent  testimony  to  the  truth  of  the  measured 
summary  by  Judge  Cooley  so  often  quoted:  "We  may  think 
that  we  have  the  Constitution _an  before  us;  but  for  practical 
purposes  the  Constitution  is  that  which  the  government  in  its  1 
several  departments  and  the  people  in  the  performance  of  their  ' 
duties  as  citizens,  recognize  and  respect  as  such;  and  nothing 
else  is.  .  .  .  Cervantes  says:  'Every  one  is  the  son  of  his  own 
works.'  This  is  more  emphatically  true  of  an  instrument  of 
government  than  it  can  possibly  be  of  a  natural  person.  What 
it  takes  to  itself,  though  at  first  unwarrantable,  helps  to  make 
it  over  into  a  new  instrument  of  government,  and  it  represents 
at  last  the  acts  done  under  it." 

^  See  below,  chap.  xxii.  ^  Readings,  p.  375. 


CHAPTER  V 

THE  EVOLUTION  OF   STATE   CONSTITUTIONS 

The  facility  with  which  our  political  system  may  be  dividec 
into  the  state  and  federal  branches  naturally  leads  to  the  separa- 
tion of  them  for  the  purpose  of  convenient  treatment;  but  the 
student  should  never  lose  sight  of  the  fact  that,  after  all,  oui 
political  system  is  a  unit  because  the  operations  of  both  branches 
interlock  at  many  points,  and  the  developments  of  each  affect 
the  letter  and  spirit  of  the  other.  The  framers  of  the  federal 
Constitution,  for  example,  did  not  contemplate  the  adoption  oi 
general  manhood  suffrage  or  the  direct  election  of  the  President 
and  yet  state  action  and  party  practice  have  acconiplished  this, 
It  surely  was  not  the  intention  of  the  states  which  ratified  the 
Constitution  that  the  outcome  was  to  be  the  reduction  of  each 
commonwealth  to  the  position  of  little  more  than  a  local  govern- 
ment through  the  increase  of  federal  power;  and  yet  such  has 
been  the  case.  It  was  not  dreamed  that  national  politics  would 
overshadow  state  politics;  but  the  growth  of  huge  national 
party  organizations  in  connection  with  the  operations  of  the 
federal  government  has  made  the  state  a  tight-working  cog  in 
a  national  mechanism.  A  complete  survey  of  American  con- 
stitutional evolution  must,  therefore,  take  into  account  the 
'ten,dencies  in  the  evolution  of  state  institutions. 

An  examination  of  the  principal  features  of  the  early  state 
constitutions  reveals  certain  striking  characteristics.^  They 
show,  in  the  first  place,  an  unlimited  faith  in  the  legislature, 
because  they  contain  practically  no  limitations  on  the  powers 
and  procedure  of  that  body.  At  the  same  time,  they  reveal 
a  distrust  of  the  executive  by  providing  in  many  instances  that 
the  governor  shall  be  elected  by  the  legislature,  and  under  all 
circumstances  restricted  to  the  exercise  of  a  very  limited  authority. 

^  The  constitutions  of  the  American  states  are  to  be  found  in  Thorpe, 
The  Federal  and  State  Constitutions,  published  by  the  federal  government 
in  igog. 

78 


The  Evolution  of  State  Constitutions  79 

Following  colonial  precedents,  they  impose  property  qualifica- 
tions, and  in  many  cases  religious  tests  as  well,  upon  voters  and 
office-holders.  They,  furthermore,  provide  that  the  state  ex-  ' 
ecutive  ofl&cers,  and  especially  the  judges,  shall  be  appointed,  not 
elected  in  the  modern  fashion.  Finally,  the  eighteenth- century 
constitutions  are  brief  and  simple  in  contrast  to  the  bulky  and 
complex  documents  of  our  time.  The  fundamental  law  of 
New  Jersey  adopted  in  1776  fills  only  about  five  printed  pages. 
The  constitution  of  New  York,  drafted  in  1777,  including  a  re- 
print of  the  Declaration  of  Independence,  covers  less  than  sixteen 
printed  pages,  while  the  last  constitution  of  New  York,  drafted 
in  1894,  spreads  over  forty-three  pages.  The  Virginia  con- 
stitution of  1776,  leaving  out  of  account  some  passages  from  the 
Declaration  of  Independence,  fills  only  about  five  and  a  half 
printed  pages;  the  last  Virginia  constitution  (1902)  is  ten  times 
as  large.  The  constitution-makers  of  Louisiana  in  1898  required 
forty-five  thousand  words  to  write  the  fundamental  law  of  that 
commonwealth;  and  the  constitution  of  Oklahoma,  admitted  to 
the  Union  in  1907,  would  fill  about  one  hundred  and  fifty  printed 
pages  of  the  style  of  this  volume. 

The  Rise  of  Political  Democracy 

At  the  outset  of  an  inquiry  into  the  first  state  constitutions, 
one  is  struck  by  the  fact  that  the  Fathers,  notwithstanding  the 
theoretical  assertion  of  equality  in  the  Declaration  of  Inde- 
pendence, did  not  believe  that  the  right  to  vote  and  hold  ojffice 
should  be  freely  given  to  all  men  regardless  of  the  amount  oi\^ 
property  they  held  or  the  religious  opinions  they  entertained."'^ 
In  nearly  every  state,  the  suffrage  was  limited,  by  the  constitu- 
tion or  laws,  to  property-owners,  generally  freeholders  or  tax- 
payers, and  in  some  of  them  religious  tests  were  imposed  in 
addition.  In  New  York  the  constitution  of  1777,  adopted  "in 
the  name  and  by  the  authority  of  the  good  people"  of  the  state, 
provided  that  "every  male  inhabitant  of  full  age,  who  shall 
have  personally  resided  within  one  of  the  counties  of  this  state 
for  six  months  immediately  preceding  the  day  of  election,  shall 
at  such  election  be  entitled  to  vote  for  representatives  of  the 
said  county  in  assembly;  if,  during  the  time  aforesaid,  he  shall 

^  Readings,  p.  72. 


8o  American  Government  and  Politics 

have  been  a  freeholder,  possessing  a  freehold  of  the  value  oj 
twenty  pounds  within  the  said  county  or  have  rented  a  tenement 
therein  of  the  yearly  value  of  forty  shillings,  and  been  ratec 
and  actually  paid  taxes  to  this  state."  ^  No  one  could  vote  foi 
state  senator  or  governor  in  New  York  who  did  not  possess 
a  freehold  of  the  value  of  £ioo,  over  and  above  all  debts  charged 
thereon.  "The  qualifications  of  electors,"  runs  the  South 
Carolina  constitution  of  1778,  "shall  be  that  every  free  white 
man,  and  no  other  person,  who  acknowledges  the  being  of  God 
and  believes  in  a  future  state  of  rewards  and  punishments,  and 
who  has  attained  to  the  age  of  one  and  twenty  years  and  has 
been  a  resident  and  inhabitant  in  this  state  for  the  space  of  one 
whole  year  .  .  .  and  hath  a  freehold  of  at  least  fifty  acres  of 
land  or  a  town  lot,  ...  or  hath  paid  a  tax  the  preceding  year 
or  was  taxable  the  present  year  ...  in  a  sum  equal  to  the  tax 
on  fifty  acres  of  land  to  the  support  of  this  government  shall 
be  deemed  a  person  qualified  to  vote  for,  and  shall  be  capable  of 
electing,  a  representative  or  representatives  to  serve  as  a  member 
or  members  in  the  senate  and  house  of  representatives."  - 

Fearing  that  the  interests  of  wealthier  classes  could  not  be 
sufficiently  safeguarded  by  the  restrictions  placed  on  voters, 
the  original  constitution-makers  imposed  still  higher  qualifi- 
cations on  representatives  and  senators.  According  to  the 
terms  of  the  New  Hampshire  constitution  of  1784,  every  repre- 
sentative had  to  be  a  Protestant  possessed  of  a  freehold  worth 
at  least  £100;  the  same  religious  test  was  placed  on  a  senator, 
and  the  value  of  his  freehold  was  fixed  at  £200.     Only  Protestants 

^AU  "freemen"  of  New  York  City  and  Albany  could  vote.  See  above, 
p.  8. 

^  Property  qualifications  on  voters  for  members  of  the  lower  house  of  the 
state  legislature  under  the  early  state  constitutions:  New  Hampshire  (1784), 
taxpayer;  Massachusetts  (1780),  freehold  yielding  £3  per  annum  or  person- 
alty worth  ;^6o;  New  York  as  in  text  above;  New  Jersey  (1.776),  estate 
worth  ;^5o;  Pennsylvania  (1776),  taxpayer;  Maryland  (1776),  freehold  of  50 
acres  or  property  worth  £30;  Virginia  (1776),  continued  the  colonial  sufifrage; 
North  Carolina  (1776),  fifty  acres  freehold  to  vote  for  senators,  and  taxpayer 
to  vote  for  members  of  the  lower  house;  South  Carolina  (1778),  fifty  acres 
freehold,  town  lot,  or  payment  of  taxes;  Georgia  (1798),  taxpayer.  Dr.  Thorpe 
estimates  that  there  were  about  one  hundred  and  fifty  thousand  voters  in  a 
population  of  five  millions,  whereas  under  the  sufifrage  prevailing  to-day  there 
would  have  been  not  less  than  seven  hundred  thousand  or  more  than  one 
million  voters.     Constitutional  History  of  the  American  People,  Vol.  I,  p.  97. 


The  Evolution  of  State  Constitutions  8i 

worth  £500  in  real  and  personal  property  could  be  assemblymen 
in  New  Jersey  under  the  fundamental  law  of  1776,  and  whoever 
aspired  to  the  place  of  senator  had  to  have  £500  more.  In 
Delaware- (1776),  representatives  had  to  be  freeholders  believing, 
in  the  Trinity  and  the  inspiration  of  the  Scriptures.  All  except 
Protestants  possessing  two  hundred  and  fifty  acres  of  land  or 
£250  in  personal  property  were  excluded  from  the  Georgia 
legislature  under  the  constitution  of  1777;  and  in  Pennsylvania 
only  taxpayers  acknowledging  the  being  of  God  and  beheving  in 
a  future  state  of  rewards  and  punishments  could  enter  the 
legislature.  / 

As  the  dignity  and  responsibility  of  office  in  the  early  state 
governments  increased,  the  property  qualifications  generally 
mounted  upwards.  The  office  of  governor  in  Massachusetts 
and  North  CaroUna  was  reserved  to  the  possessors  of  freeholds 
worth  £1000.  "No  person,"  says  the  Maryland  Constitution 
of  1776,  "unless  above  twenty-five  years  of  age,  a  resident  of 
this  state  above  five  years  next  preceding  the  election,  and  having 
in  the  state  real  and  personal  property  above  the  value  of  £5000, 
current  money  (£1000  whereof,  at  least,  to  be  freehold  estate), 
shall  be  eligible  as  governor. ' '  The  law-makers  of  South  Carolina, 
in  1778,  swept  away  the  comparatively  slight  qualifications  im- 
posed on  the  governor  two  years  before,  and  declared  that  the 
governor,  lieutenant-governor,  and  members  of  the  privy  council 
must  have  "a  settled  plantation  or  freehold  in  their  and  each 
of  their  own  right  of  the  value  of  at  least  ten  thousand  pounds 
currency,  clear  of  debt."  In  Massachusetts  and  Maryland,  the 
highest  executive  office  was  closed  to  all  except  Christians,  and 
in  New  Hampshire,  New  Jersey,  North  Carolina,  and  South 
Carolina  to  all  except  Protestants.^ 

'  Property  qualifications  of  governors  under  the  early  state  constitutions: 
New  Hampshire  (1784),  £500,  one-half  freehold;  Massachusetts  (1780), 
£1000  freehold;  New  York  (1777),  freehold;  Maryland  (1776),  ;£sooo,  at 
least  £1000  of  which  is  freehold;  North  Carolina  (1776),  £1000  freehold; 
South  Carolina  (1778),  £10,000  freehold;  Georgia  (1789),  5oo  acres  freehold, 
or  £1000  other  property.  Property  qualifications  of  members  of  state  sen- 
ates under  the  early  constitutions:  New  Hampshire  (1784),  £200  freehold; 
Massachusetts,  ;£3oo  freehold  or  £600  personalty;  New  York  (1777),  free- 
holder; New  Jersey  (1776),  £1000;  Delaware  (1792),  200  acres  freehold  or 
£1000  real  and  personal  property;  Maryland,  £1000  real  and  personal  prop- 
erty; Virginia  (1776),  freeholder;  North  Carolina  (1776),  300  acres  in  fee; 


82  American  Government  and  Politics 

From  the  opening  of  the  nineteenth  century  to  the  Civil  W2 
there  was  throughout  almost  all  the  states  a  tendency  towj 
the  abolition  of  these  property  quahfications  and  religious  tesi 
for  voters  and   office-holders,  although  free  negroes  were  no| 
generally  regarded  as  coming  within  the  new  democratic  dis-j 
pensation.     This  movement  toward  a  direct  male  suffrage  wi 
the  result  of  three  main  factors:  (i)  the  growth  of  the  mercantile 
classes,  who  were  excluded  in  large  numbers  wherever  the  free- J 
hold  qualification  was  imposed;  ^   (2)  the  migration  into  the  West, 
where,  owing  to  the  fact  that  every  one  was  fairly  well  off  so  farj 
as  the  rough  necessities  of  hfe  were  concerned,  radical  notions 
about  the  equality  of  all  white  men,  at  least,  were  ardently 
championed;  and  (3)  the  rise  of  the  large  urban  populations  where 
the  agitation  of  democratic  enthusiasts  met  a  quick  response. 
I    If  we  take  up  the  state  constitutions  at  present  in  force,  we 
find  that,  with  a  very  few  exceptions,  all  the  property  quali- 
fications and  religious  tests  have  disappeared,  and  that  the  only 
persons  now  generally  excluded  are  women,  lunatics,  paupers, 
offenders  against  election  laws,  and  persons  convicted  of  serious 
crimes.^    Pennsylvania  requires  her  voters  to  be  contributors 
in  some  amount  to  state  or  county  taxes;   Louisiana  and  South 
Carolina  permit  persons  owning  $300  worth  of  property  to  vote,, 
but  provide  alternatives  to  this  qualification.     Voters  at  elections 

South  Carolina  (1778),  ;)C2ooo  freehold;  Georgia  (1789),  250  acres  freehold  or 
property  worth  £250.  The  following  were  the  qualifications  of  members  of  the 
lower  branch  of  the  state  legislature  as  prescribed  by  the  early  constitutions: 
New  Hampshire  (1784),  two  years'  residence,  estate  of  £100,  one-half  freehold 
in  town  of  residence,  and  adherence  to  Protestant  religion;  Vermont  (1786), 
two  years'  residence,  belief  in  one  God  and  the  inspiration  of  the  Scriptures, 
Protestant  religion;  Massachusetts  (1780),  one  year's  residence,  freehold  of 
;^ioo  or  other  estate  of  ;^2oo,  Christian  religion;  New  Jersey,  one  year's  resi- 
dence, £500  real  and  personal  estate,  Protestant  religion;  Pennsylvania 
(1776),  two  years'  residence,  taxpayer,  Protestant;  Delaware  (1776),  freeholder 
and  believer  in  the  Trinity  and  inspiration  of  the  Scriptures;  Maryland 
(1776),  one  year's  residence,  £500  real  and  personal  property,  Christian  re- 
ligion; Virginia  (1776),  freeholders;  North  Carolina  (1776),  one  year's 
residence,  100  acres  for  life  or  in  fee,  Protestant;  South  Carolina  (1790), 
three  years'  residence,  free  white,  owning  freehold  of  500  acres  and  ten  negroes 
or  real  estate  of  £150  value  clear  of  debt;  Georgia  (1777),  one  year's  resi- 
dence, owner  of  250  acres  of  land  or  £250  in  property,  Protestant.  (Based 
on  Thorpe's  valuable  tables.  Constitutional  History  of  the  American  People, 
Vol.  I,  pp.  68  flf.) 

^  Readings,  p.  78.  ^  See  below,  chap.  xxii. 


I 


The  Evolution  of  State  Constitutions  83 

for  city  councillors  in  Rhode  Island  are  required  to  be  taxpayers 
on  property  worth  $134;  and  in  a  few  states  the  suffrage,  in 
local  matters,  especially  involving  expenses  for  improvements, 
is  restricted  to  property-owners. 

Property  qualifications  for  ofiice-holders  have  also  practically 
disappeared;  but  some  remnants  of  religious  restrictions  are  to 
be  found  in  the  constitutions  of  at  least  eight  states  —  Arkansas, 
Mississippi,  Maryland,  North  Carolina,  South  Carolina,  Texas, 
Pennsylvania,  and  Tennessee  —  all  of  which  require  beUef 
in  God  as  a  qualification  for  office.  The  two  states  named 
last,  Pennsylvania  and  Tennessee,  require  belief  not  only  in  God, 
but  also  in  a  future  state  of  rewards  and  punishments.  Never- 
theless, broadly  speaking,  we  may  say  that  a  century's  political 
development  has  opened  the  electorate  and  public  ofiices  to  all 
adult  white  males  (and  in  four  states  to  women),  regardless  of 
their  wealth  or  religious  views.  Its  widening  effect  is  revealed 
in  the  fact  that,  whereas  about  four  per  cent  of  the  population 
possessed  the  right  to  vote  just  after  the  revolutionary  period, 
about  twenty  per  cent  are  now  given  the  ballot. 

The  story  of  the  process  by  which  this  more  democratic  politi- 
cal system  has  been  secured  is  a  long  and  complicated  one, 
and  it  cannot  be  told  here.^  It  has  not  been  the  result  of  any 
spontaneous  and  general  action,  but  rather  of  many  halting 
measures,  tentative  experiments,  and  minor  modifications.  Con- 
trary to  popular  impressions,  Americans  were  not  all  convinced 
by  the  early  arguments  in  favor  of  universal  manhood  suffrage; 
even  Lincoln,  in  1836,  would  go  no  further  than  to  admit  "all 
whites  to  the  right  of  suffrage  who  pay  taxes  or  bear  burdens 
(by  no  means  excluding  females)."  The  only  measures  relating 
to  suffrage  which  are  applicable  to  the  whole,  country  are  the 
Fourteenth  and  Fifteenth  amendments  to  the  federal  Constitu- 

1  "  Eleven  of  the  thirteen  original  states  have  abolished  the  tax  and  prop-'\ 
erty  tests,  as  follows:  New  Hampshire,  the  tax  test  in  1792;  Georgia,  the, 
property  test  in  1789;  Maryland,  the  property  test  in  1801  and  1809;' 
Massachusetts,  the  property  test  in  1821;  New  York,  the  property  test  in 
1821  and  the  tax  test  in  1826;  Delaware,  the  property  test  in  1831;  New 
Jersey,  the  property  test  in  1844;  Connecticut,  the  property  test  in  1845; 
South  Carolina,  the  property  test  in  1865;  North  Carolina,  the  property  test 
in  1854  and  1868;  Virginia,  the  property  test  in  1850  and  the  tax  test  estab- 
lished in  1864,  in  1882."  Lalor,  Cydopcedia  of  Political  Science,  Vol.  Ill, 
pp.  825-826.     Details  cannot  be  given  here.     Consult  Thorpe,  op.  cit. 


84  American  Government  and  Politics 

lion.  The  latter  amendment  forbids  states  to  deprive  citizens 
of  the  vote  on  account  of  race,  color,  or  previous  condition  of 
servitude.  The  former  stipulates  that  whenever  a  state,  for  gene- 
ral purposes,  denies  the  suffrage  ^  to  adult  male  citizens,  its  rep- 
resentation in  the  House  of  Representatives  shall  be  reduced 
proportionately;  but  as  this  provision  remains  unenforced,  its 
practical  effect  has  not  been  to  secure  the  results  contemplated.^ 
In  the  original  states,  the  property  and  religious  qualifications 
have  been  removed  by  many  separate  measures.  The  process 
may  be  illustrated  by  some  passages  in  the  constitutional  history 
of  New  York.  The  first  constitution  of  that  state,  as  we  have 
seen,  provided  a  property  qualification  for  all  voters  (excepting 
the  freemen  of  New  York  City  and  Albany),  and  for  the  governor 
and  members  of  the  legislature.  The  constitution  of  1821  still 
required  the  senators  and  governor  to  be  freeholders,  but  widened 
the  suffrage  by  the  following  provision:  "Every  male  citizen 
of  the  age  of  twenty-one  years,  who  shall  have  been  an  inhabi- 
tant of  this  state  one  year  preceding  any  election,  and  for  the 
last  six  months  a  resident  of  the  town  or  county  where  he  may 
offer  to  vote;  and  shall  have,  within  the  year  next  preceding  the 
election,  paid  a  tax  to  the  state  or  county,  assessed  upon  his  real 
or  personal  property;  or  shall  by  law  be  exempted  from  taxation; 
or  being  armed  and  equipped  according  to  law,  shall  have  per- 
formed within  that  year  military  duty  in  the  militia  of  this 
state;  or  who  shall  be  exempted  from  performing  militia  duty  in 
consequence  of  being  a  fireman  in  any  city,  town,  or  village  in 
this  state;  and  also,  every  male  citizen  of  the  age  of  twenty-one 
years,  who  shall  have  been,  for  three  years  next  preceding  such 
election,  an  inhabitant  of  this  state;  and  for  the  last  year  a 
resident  in  the  town  or  county  where  he  may  offer  his  vote;  and 
shall  have  been,  within  the  last  year,  assessed  to  labor  upon  the 
public  highways,  and  shall  have  performed  the  labor,  or  paid  an 
equivalent  therefor,  according  to  law,  shall  be  entitled  to  vote 
in  the  town  or  ward  where  he  actually  resides,  and  not  else- 
where, for  all  officers  that  now  are,  or  hereafter  may  be,  elec- 
tive by  the  people;  but  no  man  of  color,  unless  he  shall  have 
been  for  three  years  a  citizen  of  this  state,  and  for  one  year 

*  Except  for  participation  in  rebellion  or  other  crime. 
^  See  below,  chap.  xxii. 


The  Evolution  of  State  Constitutions  85 

next  preceding  any  election,  shall  be  seized  and  possessed  of  a 
freehold  estate  of  the  value  of  two  hundred  and  fifty  dollars, 
over  and  above  all  debts  and  incumbrances  charged  thereon,  and 
shall  have  been  actually  rated,  and  paid  a  tax  thereon,  shall  be 
entitled  to  vote  at  any  such  election.  And  no  person  of  color 
shall  be  subject  to  direct  taxation  unless  he  shall  be  seized  and 
possessed  of  such  real  estate  as  aforesaid." 

Finally  in  an  amendment  adopted  in  1826  popular  suffrage 
was  established  by  the  provision  that  "every  male  citizen  of  the 
age  of  twenty-one  years,  who  shall  have  been  an  inhabitant  of 
this  state  one  year,  next  preceding  any  election,  and  for  the  last 
six  months  a  resident  of  the  county  where  he  may  offer  his  vote, 
shall  be  entitled  to  vote  ...  for  all  officers  that  now  are  or 
hereafter  may  be  elective  by  the  people."  The  special  property 
qualifications  imposed  on  "persons  of  color  "  by  the  constitution 
of  1 82 1  were  continued  and  were  retained  until  after  the  Civil 
War.^  By  an  amendment  in  1845  i^  was  added  that  "no  prop- 
erty qualification  shall  be  required  to  render  a  person  eligible 
to,  or  capable  of  holding  any  public  office  or  public  trust  in  this 
state." 

Even  many  of  the  western  states  began  their  history  with  a 
restricted  suffrage.  Ohio  came  into  the  Union  in  1802,  with  a 
constitution  limiting  the  suffrage  to  "all  white  males  above  the 
age  of  twenty-one  years,  having  resided  in  the  state  one  year 
next  preceding  the  election,  and  who  have  paid  or  are  charged 
with,  a  state  or  county  tax."  Senators  and  representatives 
likewise  had  to  be  state  or  county  taxpayers.  It  was  expressly 
declared,  however,  that  "no  religious  test  shall  be  required  as  a 
qualification  to  any  office  of  trust  or  profit."  These  property 
qualifications  were  abolished  by  the  new  constitution  of  1851; 
but  negro  suffrage  was  not  granted  until  after  the  adoption  of 
the  Fourteenth  Amendment.  Illinois,  admitted  in  1818,  imposed 
no  religious  tests,  and  admitted  free  white  males  to  the  ballot, 
but  required  her  representatives  and  senators  to  be  taxpayers, 
a  restriction  which  was  swept  away  in  1870.^  Michigan  came 
into  the  Union  in  1835,  without  any  religious  or  property  quaHfi- 
cations  for  electors  or  officers.    This  example  was  soon  followed  by 


'  Removed  by  an  amendment  ratified  in  1874. 

^  Indiana,  admitted  in  181 6,  had  similar  qualifications. 


86  American  Government  and  Politics 

the  other  states;  and,  by  the  end  of  the  first  half  of  the  nineteenth 
century,  the  United  States  was  practically  committed  to  the 
great  experiment  of  white  male  suffrage. 

The  Civil  War  and  emancipation  brought  forward  new  aspects 
to  an  old  problem  of  American  politics  —  the  question  of  the 
negro.  At  the  beginning  of  the  Republic  the  number  of  free 
negroes  was  so  small  that  the  problem  did  not  attract  serious 
attention,  and  some  of  the  northern  states  did  not  exclude  them 
from  the  suffrage.  Soon,  however,  there  appeared  a  decided 
feeling  against  granting  them  the  ballot.  Some  of  the  states 
withdrew  the  privilege  they  had  bestowed;  and  the  newer  west- 
ern commonwealths  quite  uniformly  decided  in  favor  of  restrict- 
ing the  franchise  to  white  men.  Even  Iowa,  in  her  constitution, 
adopted  on  the  eve  of  the  Civil  War  which  ended  in  enfranchis- 
ing all  negroes  —  at  least  temporarily  —  took  the  conservative 
attitude  on  the  question,  after  a  heated  controversy. 

Then  came  the  great  conflict,  at  the  close  of  which  the  tri- 
umphant Republicans  by  military  force  compelled  the  accept- 
ance of  the  Fourteenth  and  Fifteenth  amendments,  designed  to 
sweep  away  all  property  qualifications  and  race  distinctions.^ 
For  a  while,  at  the  close  of  the  war,  the  South  was  in  the  grip  of 
the  Republican  administration,  and  negro  suffrage  was  tried  with 
results  which,  to  a  large  degree,  would  have  been  ludicrous  if 
they  had  not  been  pitiable.  As  soon  as  the  hold  of  the  northern 
military  authorities  was  loosened,  the  southern  whites  deter- 
mined to  deprive  the  negroes  of  the  rights  which  had  been  newly 
forced  upon  them;  and  by  a  number  of  ingenious  devices,  hardly 
escaping  the  letter,  and  certainly  not  the  spirit,  of  the  federal 
Constitution,  they  have  succeeded  in  disfranchising  perhaps 
nine- tenths  or  more  of  the  colored  voters.  Among  these  de- 
vices are  provisions  requiring  electors  to  read  and  write,  imposing 
property  qualifications,  and  admitting  those  who  voted,  or  whose 
fathers  or  grandfathers  were  entitled  to  vote,  in  1867.^ 

Decline  in  Representative  Assemblies  J 

With  the  growth  of  confidence  in  the  capacity  of  the  broad 
mass  of  the  people  to  govern  themselves  through  the  exercise 

^  See  below,  chap,  xxii;  and  Readings,  pp.  393,  394. 
^Readings,  p.  401. 


The  Evolution  of  State  Constitutions  87 

of  the  franchise,  there  came  a  remarkable  decline  of  confidence 
in  representative  assemblies.  ^<This  decline  is  written  large  in 
every  state  constitution  framed  since  the  first  quarter  of  the 
nineteenth  century.  The  reckless  and  corrupt  manner  in  which 
legislatures  bartered  away  charters,  franchises,  and  special 
privileges  to  private  corporations  led  our  constitution-makers 
to  provide  long  and  detailed  lists  of  matters  on  which  the  legis- 
latures are  absolutely  forbidden  to  act.^  To  secure  publicity 
and  prevent  sinister  influences  from  working  by  secret  methods, 
the  newer  constitutions  contain  provisions  controlling  legislative 
jprocedureiX^xtravagance  and  recklessness  in  laying  taxes  and 
making  appropriations  have  brought  about  a  series  of  provisions 
placing  limits  upon  the  borrowing  power  of  our  state  legislatures.^ 
Constant  interference  with  the  local  affairs  of  cities  has 
been  met  by  numerous  devices  designed  to  safeguard  municipal 
autonomy.^  In  every  state,  except  one,  each  legislative  act  must 
now  be  approved  by  the  governor,  and  if  it  is  vetoed  it  must  be 
repassed,  generally  by  an  extraordinary  majority,  before  it  can 
become  a  law.  Finally,  the  crowning  act  of  distrust  in  the 
integrity  and  responsibility  of  the  legislature  has  been  manifested 
by  the  establishment,  in  many  states,  of  the  initiative  and  refer- 
endum, which  gives  to  the  voters  the  right  to  make  laws  without 
even  the  intervention  of  the  legislature.^ 

With  this  growing  distrust  in  representative  assemblies  has 
come  a  remarkable  increase  in  the  confidence  displayed  in  execu- 
tive authority.  As  a  result  of  the  bitter  conflicts  between 
colonial  legislatures  and  royal  governors,  the  early  constitution- 
makers  had  come  to  distrust  the  executive  and  to  fear  its 
transformation  into  a  monarchy  through  usurpations.  So  great 
was  their  apprehension  at  the  outset,  that  they  empowered  the 
legislature  even  to  choose  the  governor  in  all  of  the  colonies 
except  New  York  and  Massachusetts,  where  he  was  elected 
by  popular  vote.  His  term  of  office  was  usually  fixed  at 
one  year;  in  most  cases  he  was  even  deprived  of  the  veto 
power;  and  in  the  exercise  of  such  authority  as  was  given  him 
he  was  often  controlled  by  a  council.  In  Pennsylvania,  for 
example,  the  governor  bore  the  more  democratic  title  of  president; 
he  was  elected  by  a  joint  baUot  of  the  general  assembly  and  the 

^  See  below,  chap,  xxv,  and  Readings,  pp.  84,  458.        ^  Readings,  p.  457. 
^  Ibid.,  pp.  459  ff.  *  Ibid.,  p.  512.  *  Ibid,  pp.  413  ff. 


88  American  Government  and  Politics 

council  for  a  term  of  one  year;  he  enjoyed  no  authority  in  sum- 
moning or  dissolving  the  legislature;  he  was  not  granted  the 
veto  power;  and  he  was  controlled  to  a  considerable  extent  by 
an  elective  council.  In  New  York,  where  the  governor  was 
elected  by  the  freeholders  for  a  term  of  three  years,  his  veto 
power  was  shared  by  a  council  of  revision  composed  of  the  chan- 
cellor and  judges  of  the  supreme  court;  and  his  appointing  power 
was  held  in  check  by  a  special  council  of  senators  chosen  by  the 
assembly. 

This  executive  system  was  not  long  in  operation  before  the 
distrust  in  the  integrity  and  capacity  of  the  legislature,  noted 
above,  led  to  a  call  for  the  increase  of  the  governor's  power. 
Pennsylvania,  revising  in  1790  the  constitution  framed  in  the 
year  of  Independence,  vested  the  election  of  the  governor  in  the 
citizens  of  the  commonwealth,  lengthened  his  term  from  one  to 
three  years,  and  gave  him  the  veto  power.  New  York,  in 
182 1,  abolished  the  councils  of  revision  and  appointment,  that 
shared  the  governor's  veto  and  appointing  power.  Virginia, 
in  the  revision  of  1830,  retained  the  method  of  electing  the  gov- 
ernor by  the  legislature,  but  at  that  time  increased  his  term  to 
three  years.  The  new  western  states,  Kentucky  in  1792,  Ohio 
in  1802,  Indiana  in  18 16,  Michigan  in  1835,  provided  for  popular 
election  —  examples  which  were  followed  by  the  neighboring 
commonwealths  as  they  were  gradually  admitted  to  the  Union. 
In  1788  only  two  states.  New  York  and  Massachusetts,  gave  the 
governor  the  veto  power,  and  the  former  with  limitations  on  its 
exercise;  but  in  1910  only  one  state,  North  Carolina,  withholds 
it.  More  than  twenty  states  have  extended  the  term  of  office 
to  four  years,  and  only  two  retain  the  early  plan  of  annual  elec- 
tions, namely,  Massachusetts  and  Rhode  Island.  Moreover, 
the  governor  has  now  won  a  recognized  place  as  political  leader 
and  assumes  a  large  share  of  responsibility  for  the  legislative  as 
well  as  the  executive  policy  of  the  state  government. 

The  State  Judiciary 

Many  radical  changes  have  been  made  in  the  judicial  system 
of  our  commonwealths.^  The  first  state  constitutions  contained 
very  few  provisions  with  regard  to  the  judiciary;   they  left  the 

'  See  below,  chap.  xxvi. 


The  Evolution  of  State  Constitutions  89 


■J» 


question  of  the  organization  of  the  courts  and  distribution  of 
jurisdiction  principally  to  the  legislature.  In  the  beginning  of 
our  history,  the  judges  of  the  higher  courts  were  universally 
appointed,  and  held  their  offices  during  good  behavior.  Most 
of  our  constitutions,  however,  now  provide  that  judges  shall  be 
elected  by  popular  vote,  usually  for  short  terms.  Only  a  few 
states  have  retained  the  ancient  system. 

In  some  of  the  newer  states,  we  find  radical  departures  from 
the  traditional  Anglo-Saxon  legal  doctrines.^  For  example,  in 
Oklahoma,  prosecution  by  grand  jury  has  been  partially  set 
aside  in  favor  of  prosecution  by  information;  in  county  courts 
and  courts  not  of  record  tl;e  petty  jury  is  to  consist,  not  of  twelve, 
but  of  six  men;  and  in  civil  cases  and  criminal  cases  involving 
crimes  less  than  felony,  unanimous  verdict  is  not  required,  but 
three-fourths  of  the  whole  number  of  jurors  may  render  a  verdict. 
The  ancient  rule  of  law  that  a  person  is  not  required  to  give 
evidence  tending  to  incriminate  himself  when  testifying  against 
any  other  person  or  corporation  is  abrogated  in  Oklahoma;  and 
every  person  accused  of  violating  or  disobeying  an  injunction 
out  of  the  presence  or  hearing  of  the  court  is  entitled  to  trial  by 
jury  —  the  right  of  a  hearing  being  guaranteed  in  all  cases  before 
the  imposition  of  any  penalty  or  punishment  for  contempt.  In 
order  to  expedite  judicial  business,  a  few  states  have  resorted  to 
the  drastic  device  of  refusing  to  pay  the  supreme  court  justices 
until  they  have  finally  decided  the  cases  before  them;  and 
Oklahoma  provides  that  they  must  render  an  opinion  in  every 
case  within  six  months  after  it  has  been  submitted. 

The  Multiplication  of  Elective  Offices 

We  began  our  political  history  with  a  small  number  of  elective 
offices  —  a  short  ballot.  Under  the  first  constitution  of  New 
York  (1777),  the  governor,  the  lieutenant-governor,  and  the 
members  of  the  legislature  were  the  only  state  officers  elected  by 
popular  vote;  all  others  were  selected  by  the  council  of  appoint- 
ment, consisting  of  the  governor  and  four  senators  chosen  by  the 
assembly.  Even  sheriffs,  county  judges,  and  other  county 
officers  were  appointed  in  the  same  manner.  The  first  constitu- 
tion of  Virginia  vested  the  choice  of  the  members  of  the  legisla- 

^  Readings,  pp.  87  ff. 


90  American  Government  and  Politics 

ture  in  the  voters;  the  governor  and  other  state  officers  were 
elected  by  joint  ballot  of  the  legislature;  the  justices  of  the  peace 
»  were  appointed  by  the  governor;  the  sheriffs  and  coroners  were 
appointed  by  the  respective  courts.  Under  the  Massachusetts 
constitution,  at  first  the  governor,  the  lieutenant-governor,  and 
the  members  of  the  legislature  were  elected  by  popular  vote; 
the  leading  state  officers  were  chosen  by  the  legislature,  and  the 
minor  state  officers  and  some  local  officers  were  appointed  by  the 
governor.  This  general  plan  was  adopted  in  the  western  states 
also.  The  Ohio  constitution  of  1802  provided  that  only  the 
governor  and  the  legislature  should  be  elected  by  the  people,  and 
that  thc'iother  state  officers  should  be  chosen  by  joint  ballot  of 
both  holies. 

As  indicated  above,  our  institutions  underwent  a  democratic 
revolution,  or  what  purported  to  be  a  democratic  revolution, 
during  the  first  half  of  the  nineteenth  century.  Property  and 
religious  tests  were  swept  away;  the  suffrage  was  extended  to 
nearly  all  white  males;  and  a  multitude  of  appointive  offices  were 
made  elective.  The  whole  process  is  illustrated  in  the  constitu- 
tional evolution  of  New  York.  The  constitutional  revision  of 
182 1,  which  aimed  to  abolish  the  council  of  appointment  rather 
than  to  democratize  the  entire  system,  left  the  leading  state 
officers,  except  the  governor  and  the  lieutenant-governor,  appoin- 
tive, and  gave  the  appointing  power  to  the  legislature.^  The 
great  revolution  came  in  1846,  when  the  governor,  lieutenant- 
governor,  secretary  of  state,  comptroller,  treasurer,  attorney- 
general,  state  engineer  and  surveyor,  canal  commissioner,  inspec- 
tor of  state  prisons,  the  judges  of  the  court  of  appeals  and  the 
justices  of  the  supreme  court,  were  made  elective.  A  similar 
revolution  occurred  in  all  except  a  few  states.  New  Jersey,  for 
instance,  escaped  the  tidal  wave;  the  constitutional  revision  of 
1844  left  the  judges  and  nearly  all  the  state  officers  appointive. 
It  is  commonly  supposed  that  this  great  democratic  upheaval 
was  due  to  the  leaven  of  French  political  philosophy  working 
through  Jeffersonian  democracy.  It  is  true  that  the  notion  of 
elective  government  was  prominent  in  the  philosophy  of  many 
French  pubUcists;  it  was  inherent  in  Rousseau's  popular  sover- 
eignty, and  found  its  way  with  a  vengeance  into  the  revolution- 

^  Except  as  to  the  judges. 


The  Evolution  of  State  Constitutions  91 

ary-  constitution  of  1791,  until  the  poor  clodhopper's  head,  as 
Napoleon  put  it,  was  addled  with  elections.  It  is  likewise  true 
that  Jefferson  included  elective  government  among  the  cardinal 
principles  of  his  system.  "We  believed,"  he  said,  "that  man 
was  a  rational  animal,  endowed  by  nature  with  rights  and  with 
an  innate  sense  of  justice;  and  that  he  could  be  restrained  from 
wrong  and  protected  in  right  by  moderate  powers  confided  to 
persons  of  his  own  choice  and  held  to  their  duties  by  dependence 
on  his  own  will."  ^  It  is  also  true  that  the  doctrine  of  an  elective 
administration  was  propagated  with  great  zeal  by  democratic 
enthusiasts  during  the  sixty  years  that  followed  the  establishment 
of  our  independence  —  propagated  with  such  zeal  that  the  peo- 
ple were  converted  and  the  notion  was  hardened  into  a  political 
dogma. 

Nevertheless  there  were  potent  forces  besides  "political  prin- 
ciples" which  precipitated  this  revolution.  It  requires  no  very 
deep  research  to  discover  that  the  appointive  system  worked 
badly  in  a  large  number  of  cases.  A  study  of  the  debates  of 
the  state  conventions  which  overthrew  the  older  system  yields 
abundant  evidence  in  addition  to  that  afforded  by  the  con- 
troversial literature  of  the  time.  The  early  constitution-makers 
did  not  adopt  a  system  that  would  fix  responsibility.  They 
were  too  much  afraid  of  the  governor,  not  merely  on  account 
of  their  republican  ideas,  but  on  account  of  their  practical  ex- 
perience with  the  colonial  governor,  to  intrust  him  with  a  con- 
siderable appointing  power.  In  New  York  ( 1 7  7  7) ,  his  appointive 
authority,  as  we  have  seen,  was  shared  by  a  council  of  appoint- 
ment, constructed  by  the  following  process.  Once  a  year  the 
assembly  selected  a  senator  from  each  of  the  four  great  districts 
into  which  the  state  was  divided,  and  the  four  senators  with  the 
governor  constituted  the  council;  the  governor  was  the  presiding 
officer  and  had  a  casting  vote  only.  In  actual  practice  each 
member  of  the  council  claimed  a  nominating  power  equal  to  that 
of  the  governor,  and  until  its  abolition  in  182 1  this  body  was  the 
gpntre  of  notorious  partisan  intrigues  over  patronage. 
*  In  denouncing  the  system  in  his  message  of  1820,  Governor 
De  Witt  CHnton  said:  "The  offices  in  the  gift  of  this  council 
are  remunerated  by  salaries  or  fees  to  the  amount  of  a  milUon 

*  Readings,  p.  93. 


92  American  Government  and  Politics 

dollars  annually.  Combinations  will  be  formed  to  obtain  con- 
trol of  this  enormous  patronage.  And  they  will  attempt  to 
influence,  in  the  first  place,  the  elections  of  the  people,  by  dictat- 
ing under  the  forms  and  discipline  of  party;  secondly,  the  selec- 
tion of  the  appointing  power;  and  thirdly,  the  operations  of  that 
institution.  .  .  .  With  this  principle  of  irritation  in  our  con- 
stitution, the  hydra  of  faction  will  be  in  constant  operation, 
endeavoring  to  make  its  way  to  power  sometimes  by  open  denun- 
ciation, at  others  by  secret  intrigue,  and  always  by  artful  ap- 
proaches. The  responsibility  of  pubHc  officers  is  essential  to  the 
due  performance  of  their  trust,'and  is  demanded  by  the  properties 
of  delegated  power  and  the  best  interests  of  the  community. 
The  council  as  constituted  is  almost  destitute  of  this  essential 
attribute.  The  political  tranquillity  of  the  state  demands  a 
different  arrangement  of  the  appointing  power.*"  In  short, 
it  is  difficult  to  imagine  a  system  better  calculated  to  introduce 
obscurity  into  the  administration  of  a  state.^ 

In  the  other  commonwealths  the  appointing  power  was  vested 
in  the  legislature  or  in  the  governor  and  senate,  or  distributed 
in  such  a  way  as  to  confuse  responsibilities,  entangle  the  legis- 
lature in  administrative  functions,  and  prevent  the  leading  state 
offices  from  falling  wholly  under  the  control  of  any  person  or 
body  of  persons.  The  natural  consequence  seems  to  have  been, 
in  nearly  every  case,  that  the  appointing  power  passed  from  the 
pubHc  authorities  in  which  it  was  vested  by  law  into  the  hands  of 
organizations  unknown  to  the  law  and  only  slightly  or  not  at  all 
subject  to  the  pressure  of  public  opinion.  Appointment  by  the 
legislature  on  a  large  scale  was  a  new  experiment  in  American 
L  politics,  for  the  power  had  not  been  generally  exercised  by 
colonial  legislatures;  ^  and  it  required  very  little  experience  to 
demonstrate  that  appointment  by  a  numerous  assembly  was 
about  the  most  successful  way  of  destroying  responsibility  that 
could  have  been  devised. 

The  recognition  of  this  fact  is  apparent  in  the  debates  of  the 
mid-century  conventions  that  overthrew  the  appointive  system. 
The  experiment,  tried  under  the  New  York  constitution  of  1821, 

'  Cited  in  Lincoln,  The  Constitutional  History  of  New  York,  Vol.  Ill,  p.  615. 
2  See  Gitterman,  "The  Council  of  Appointment  in  New  York,"  in  the 
Political  Science  Quarterly,  Vol.  VII,  pp.  80  fiE. 
^  Except  in  New  England. 


The  Evolution  of  State  Constitutions  -  93 

of  allowing  the  legislature  to  select  some  officers  and  the  governor 
and  senate  to  select  others  did  not  work  much  better  than  the 
old  council  of  appointment;  for  an  extra-legal  machine  known  as 
the  "Albany  regency"  sprang  up  and  controlled  all  appointments 
by  secret  operations  in  the  legislature.  Appointment  to  office 
by  the  legislative  department,  said  Mr.  Williams  in  the  Ohio 
convention  of  1850,  "has  tended  to  embitter  party  spirit  and 
convert  the  general  assembly  into  a  mere  political  arena,  and  to 
some  extent  corrupt  the  pure  fountain  of  legislation.  ...  It 
is  very  certain  that  the  principle  which  gives  directly  to  the 
sovereign  people  the  sole  power  of  appointments  to  office  is  gain- 
ing ground."  ^ 

This  view  is  confirmed  by  Rufus  King  in  his  work  on  Ohio. 
The  legislature,  he  writes,  "overloaded  with  the  appointing  power 
which  had  been  taken  away  from  the  executive,  became  so  much 
depraved  in  the  traffic  of  offices,  that  in  an  assembly  where  there 
was  a  tie  vote  between  the  Democrats  and  Whigs,  two  Free 
Soilers  held  the  balance  of  power  and  were  permitted  to  choose 
a  United  States  Senator  in  consideration  of  giving  their  votes 
for  every  other  appointment  to  the  party  which  aided  them  in 
this  supreme  exploit  of  jobbery."  ^  The  transformation  of  the 
legislature  into  a  chamber  of  intrigue  for  office-hunters  also 
occurred  in  Illinois.^  In  short,  it  seems  to  have  happened  in 
every  state  that  tried  the  system. 

This  unhappy  experience  with  a  variety  of  appointing  schemes, 
and  certain  prevalent  theories  of  democracy  brought  our  state 
constitution-makers  gradually  to  the  acceptance  of  the  plan  of 
popular  election  as  the  remedy  for  the  evils  which  had  sprung 
up  and  also  as  the  goal  of  our  political  development.  One  after 
the  other  the  old  offices  were  made  elective,  and,  as  newer  state 
offices  of  importance  were  created,  the  principle  was  applied  as  a 
matter  of  course.  When  it  was  suggested  in  a  convention  or 
legislature  that  the  governor  might  appoint  a  state  auditor  or 
engineer  or  veterinarian,  some  advocate  of  fundamental  democ- 
racy was  sure  to  plead  in  tremulous  tones  the  rights  of  the  people. 
"I  believe  the  voters  of  this  commonwealth  are  competent  to 

*  Debates  and  Proceedings  of  the  Convention  for  the  Revision  of  the  Constitu- 
tion of  the  State  of  Ohio  (185&-51),  Vol.  I,  p.  87. 
^King,  Ohio,  p.  291. 
'  Davidson  and  Stuv6,  History  of  Illinois,  pp.  297  ff . 


94  American  Government  and  Politics 

elect  their  treasurer,"  exclaimed  Mr.  Hanks  in  the  Kentucky 
convention  of  1890,  when  it  was  proposed  to  give  the  governor 
the  power  to  appoint  the  officer;  "I  know  full  well  that  they  are 
able  to  elect  a  governor.  ...  I  love  our  form  of  government. 
I  love  it  for  its  glory,  beauty  and  its  grandeur.  I  love  it  for  what 
it  has  accompHshed;  but  while  I  love  it,  I  loathe  in  the  deepest 
recesses  of  my  heart  any  effort  whatever  that  will  go  in  the  direc- 
tion of  taking  from  the  people  of  Kentucky  the  right  to  choose 
their  own  officers."  * 

In  close  connection  with  the  doctrine  that  all  pubhc  officers 
should  be  elected  is  the  notion  of  "rotation  in  office,"  ^  which 
assumed  such  a  large  place  in  the  political  philosophy  of  Jack- 
sonian  democracy  that  it  may  best  be  described  in  Jackson's  own 
words:  "There  are,  perhaps,  few  men  who  c^n  for  any  length  of 
time  enjoy  office  and  power  without  being  more  or  less  under 
the  influence  of  feelings  unfavorable  to  the  faithful  discharge  of 
their  public  duties.  Their  integrity  may  be  proof  against  im- 
proper considerations  immediately  addressed  to  themselves,  but 
they  are  apt  to  acquire  a  habit  of  looking  with  indifference  upon 
the  public  interests  and  of  tolerating  conduct  from  which  tan 
unpracticed  man  would  revolt.  Office  is  considered  as  a  species 
of  property,  and  government  rather  as  a  means  of  promoting  in- 
dividual interests  than  as  an  instrument  created  solely  for  the 
service  of  the  people.  Corruption  in  some  and  in  others  a  per- 
version of  correct  feelings  and  principles  divert  government 
from  its  legitimate  ends  and  make  it  an  engine  for  the  support 
of  the  few  at  the  expense  of  the  many.  The  duties  of  all  pubUc 
officers  are,  or  at  least  admit  of  being  made,  so  plain  and  simple 
that  men  of  intelligence  may  readily  qualify  themselves  for  their 
performance;  and  I  can  not  but  believe  that  more  is  lost  by  the 
long  continuance  of  men  in  office  than  is  generally  to  be  gained 
from  their  experience."  ^ 

Miscellaneous  Matters  * 

In  addition  to  these  significant  changes  in  the  structure  of 
American  commonwealth  government,  as  it  was   conceived  in 

*  Debates  in  the  Kentucky  Constitutional  Convention,  1890,  Vol.  I,  pp.  1419  ff . 
"^Readings,  p.  81. 

^  Richardson,  Messages  and  Papers  of  the  Presidents,  Vol.  II,  pp.  442-462. 

*  See  below,  especially,  chaps  xxii-xxv;  and  Readings,  pp.  87  fif. 


The  Evolution  of  State  Constitutions  95 

early  times,  we  find,  in  our  newer  constitutions,  a  large  number 
of  sections  relating  to  matters  which  were  either  neglected  in  the 
eighteenth  century  or  intrusted  to  the  discretion  of  the  legislature, 
or  which  have  arisen  .during  the  nineteenth  century.  Indeed 
our  state  constitutions  mainly  reflect  the  principal  legal  adjust- 
ments which  have  accompanied  the  material  development  of  our 
country  and  are,  in  fact,  well-nigh  meaningless  to  any  one  not 
acquainted  with  the  course  of  our  economic  evolution  during  the 
nineteenth  century.  Our  recent  constitutions  make  elaborate 
provisions  for  the  control  of  railway  and  other  corporations; 
they  contain  sections  in  behalf  of  labor;  they  provide  in  more  or 
less  detail  for  popular  education;  they  take  into  account  the 
special  legal  problems  created  by  the  rise  of  the  great  cities. 
Several  of  them  maj?.e  special  recognition  of  the  changed  position 
of  women  in  modern  society  by  abrogating  the  old  English  legal 
»  do(ftrines"in  accordance  with  which  her  personality  was  merged 
in  that  of  her  husband  while  her  property  passed  into  his  pos- 
session or  control.  Several  of  our  state  constitutions  expressly 
provide  that  women  may  acquire  and  possess  property  of  all 
kinds  separate  and  apart  from  their  husbands;  and  specifically 
abolish  all  distinctions  between  men  and  women  with  regard  to 
the  right  to  acquire,  enjoy,  and  dispose  of  property  and  make 
contracts  in  reference  thereto.  Some  of  the  newer  constitutions 
also  contain  special  provisions  in  behalf  of  women  employed 
in  industries.^  — .^^ 

^  Dr.  W.  F.  Dodd  sums  up  in  a  scholarly  review  the  recent  tendencies  in 
state  constitutional  developments  as  follows:  "(i)  The  disappearance  of  the 
distinction  in  form  of  enactment  between  statutes  and  constitutional  amend- 
ments in  the  states  which  have  adopted  the  initiative  and  referendum.  (2) 
The  increase  of  popular  control  over  state  legislation  through  the  spread  of 
the  initiative  and  referendum,  and  through  the  enactment  of  statutory  matter 
by  constitutional  amendment.  (3)  The  increase  of  popular  control  in  towns 
and  cities  through  the  granting  to  cities  of  power  to  frame  their  own  charters, 
and  through  restrictions  placed  upon  state  legislatures  as  to  local  and  special 
legislation;  and  through  the  introduction  of  the  local  initiative,  referendum, 
and  recall.  (4)  The  slight  increase  in  the  power  of  the  governor  over  the 
state  administration,  and  the  great  increase  of  the  governor's  power  over 
legislation.  (5)  The  continued  diminution  of  the  power  of  state  legislatures, 
through  the  adoption  of  methods  of  popular  legislation,  through  express  pro- 
hibitions upon  legislatures  with  reference  to  special  and  local  legislation,  and 
through  the  increased  power  granted  to  the  governor  over  legislation.  (6) 
The  efiforts  to  subject  public  service  corporations  to  more  adequate  control." 
Proceedings  of  Ihe  American  Political  Science  Association,  1908,  pp.  149-164. 


g6  American  Government  and  Politics 

Development  in  the  Process  of  Constitutional  Amendment'^ 

When  the  sovereignty  of  the  British  crown  and  parliament 
was  thrown  off,  the  Revolutionists  naturally  declared  that  the 
popular  will  was  the  basis  of  all  government.  The  right  of  the 
people  to  alter  or  abolish,  and  to  institute  new  forms  of  govern- 
ment on  such  principles  and  with  such  powers  as  might  to  them 
seem  most  likely  to  effect  their  safety  and  happiness  was  laid 
down  in  the  Declaration  of  Independence.  Notwithstanding 
this,  it  was  a  long  time  before  the  state  constitution-makers 
came  to  see  that,  according  to  this  great  democratic  theory,  every 
fundamental  law  ought  to  provide  for  a  simple  mode  of  amend- 
ment through  which,  from  time  to  time,  the  electorate  might 
alter  or  reconstruct  the  system  of  government.  A  number  of 
the  first  state  constitutions  made  no  provisions  whatever  for 
amendment,  and  nearly  all  of  them  were  put  into  operation  with- 
out being  submitted  to  popular  ratification.  This  was  du^  to 
the  confusion  of  the  Revolutionary  days  during  which  the  con- 
stitutions were  drafted,  to  a  failure  to  distinguish  between  con- 
stitutions and  statutes,  and  to  the  generally  prevailing  notion 
that  a  convention  composed  of  delegates  chosen  by  the  electorate 
had  the  sovereign  power  to  frame  new  governments.  And,  as  a 
matter  of  practice,  amendments  were  made  from  time  to  time, 
and  new  constitutions  were  drafted,  by  conventions  summoned 
on  the  mere  call  of  the  legislatures  without  any  higher  sanction. 
This  seems  to  have  been  recognized  as  a  regular  method;  for, 
with  the  exception  of  the  Vermont  constitution  of  1793,  none  of 
the  constitutions  framed  before  the  opening  of  the  nineteenth 
century  provided  that  amendments,  whether  made  by  the  legis- 
lature or  a  special  convention,  should  be  submitted  to  popular 
vote. 

It  was  therefore  only  by  a  gradual  process  that  our  constitu- 
tion-makers arrived  at  anything  like  the  complete  and  elaborate 
system  of  amendment  to  be  found  in  the  most  carefully  pre- 
pared fundamental  laws  of  our  day,  such,  for  example,  as  that  of 
New  York.  This  process,  according  to  Professor  Garner,  has 
four  stages.  In  the  closing  decades  of  the  eighteenth  century 
it  was  the  common  practice  to  make  no  provision  at  all  for  amend- 

*  See  article  on  Amendment  Systems  by  Professor  J.  W.  Garner,  American 
Political  Science  Review,  February,  1907. 


The  Evolution  of  State  Constitutions  97 

ments;  (i)  during  the  first  half  of  the  ninetenth  century  the  / 
method  of  amendment  by  convention  was  fairly  well  developed; 
(2)  immediately  preceding  and  following  the  Civil  War  the  more 
simple  method  of  alteration  through  a  legislative  enactment 
ratified  by  the  voters  was  widely  adopted;  (3)  during  the  three 
or  four  decades  immediately  following  the  Civil  War  the  system 
of  double  amendment  through  periodic  conventions  and  legisla- 
tive enactments  popularly  ratified  was  worked  out;  and  (4) 
within  the  last  decade  has  come  the  still  more  complete  and 
democratic  system  of  amendment  through  the  popular  initiative 
and  referendum. 

The  effect  of  this  simpUfication  in  the  amending  process  is 
apparent  at  a  glance.  Any  one  who  examines  the  recent  history 
of  state  constitutions  will  be  struck  by  the  frequency  with  which 
they  are  being  revised  and  amended.  Within  the  last  fifteen 
years  no  less  than  seven  states  —  New  York  (1894),  South  Caro- 
lina ^895),  Delaware  (1897),  Louisiana  (1898),  Alabama  (1901), 
Virginia  (1902),  and  Michigan  (1908)  —  have  drafted  new  consti- 
tutions.^ Furthermore,  owing  to  the  great  detail  in  which  our 
cohstitutions  are  now  being  elaborated,  frequent  amendments, 
usually  of  minor  importance,  are  required.^  New  York,  since 
1894,  has  adopted  about  twenty  amendments;  and  there  is 
scarcely  a  state  election  at  which  some  new  alteration  in  the  con- 
stitution is  not  submitted  to  the  voters  for  ratification.  The 
southern  states  have  made  the  most  frequent  constitutional 
changes,  but  this  has  been  largely  due  to  circumstances  connected 
with   the   Civil   War.    Alabama   has   had   five   constitutions, 

*  Several  of  our  state  constitutions,  however,  extend  back  beyond  the 
Civil  War.  In  Massachusetts,  the  constitution  of  1780  with  amendments  is 
still  in  force;  the  fundamental  structure  of  the  government  of  New  Hamp- 
shire, as  devised  in  1792,  still  stands  in  spite  of  the  slight  redrafting  of  1903; 
and  Vermont  retains  her  fundamental  law  of  1793,  with  amendments. 

2  In  the  state  elections  of  1906  no  less  than  69  constitutional  amendments 
were  submitted;  in  CaUfornia  14,  8  adopted  and  6  rejected;  in  Louisiana  12, 
11  adopted  and  i  rejected;  Idaho  6,  5  rejected  and  i  adopted;  in  Oregon  5, 
4  adopted  and  i  rejected;  in  Florida  5,  all  rejected;  in  South  Dakota  4,  all 
adopted;  in  Kansas  3,  all  adopted;  in  Minnesota  3,  2  adopted  and  i  rejected; 
in  Georgia  3,  all  adopted;  in  Texas  3,  i  adopted  and  2  rejected;  in  Washing- 
ton 2,  both  rejected;  in  Missouri  2,  both  adopted;  in  Arkansas,  Colorado, 
Mississippi,  Montana,  Nebraska,  North  Dakota,  and  Indiana  i  each.  Forty- 
five  of  the  69  submitted  were  adopted.  R.  H.  Whitten,  in  the  Political 
Science  Review  for  February,  1907,  p.  249. 


98  American  Government  and  Politics 

Georgia  six,  Louisiana  seven,  Maryland  four,  Mississippi  four, 
South  Carolina  six,  and  Virginia  six.  The  states  of  the  Middle 
West  have  had  but  few  general  constitutional  revisions;  the 
Indiana  constitution  of  185 1,  the  Iowa,  Minnesota,  and  Ohio 
constitutions  of  the  same  period,  and  the  Illinois  constitution  of 
1870,  with  amendments,  are  still  in  force. 

A  survey  of  our  state  history  during  the  last  quarter  of  a 
century  undoubtedly  reveals  that  our  commonwealth  constitu- 
tions are  becoming  more  and  more  cumbersome  and  complex; 
and  affords  but  little  consolation  to  those  who  beheve,  with 
President  Woodrow  Wilson,  that  "the  prompter  we  grow  in 
applying  with  unhesitating  courage  of  conviction  all  thoroughly 
tested  or  well-considered  expedients  necessary  to  make  self- 
government  among  us  a  straightforward  thing  of  simple  method, 
single,  unstinted  power,  and  clear  responsibility,  the  nearer  we 
approach  to  the  sound  sense  and  practical  genius  of  the  great 
and  honorable  statesmen  of  1787." 


■'^ 


W^ 


CHAPTER  VI 

THE    EVOLUTION    OF    POLITICAL    ISSUES    IN    THE    UNITED    STATES 

The  Place  of  Parties  in  the  Process  of  Government} 

A  CITIZEN  might  know  all  the  written  provisions  of  the  federal 
and  state  constitutions,  and  the  names  of  all  the  legislators  and 
public  officers,  their  terms,  qualifications,  emoluments,  and 
statutory  duties;  he  might  be  familiar  with  the  decisions  of  the 
Supreme  Court  on  every  important  point  of  constitutional  law 
and  with  the  organization  of  every  department  of  the  federal 
and  state  governments  —  in  short,  he  rnight  be  intimately  ac- 
quainted with  law  and  juristic  theory — and  yet  not  understand 
the  government  as  a  going  concern;  because  the  government  ^ 
is  not  a  group  of  rules  but  a  group  of  persons  engaged  in  various 
public  occupations,  one  portion  devoting  its  attention  principally 
to  "making  laws  and  another  to  carrying  them  into  execution. 
Blackstone,  therefore,  had  a  very  precise  notion  of  the  true  nature 
of  a  government  when  he  treated  it  as  an  aggregate  of  persons 
having  rights  and  dutie^  However  much  we  may  talk  of  a 
"government  of  laws  and  not  of  men,"  it  remains  a  fact  that  every  ~r~ 
act  of  the  government  is  an  act  of  a  certain  person  or  of  certain,^ 
groups  of  persons;  and  in  official,  as  in  private  life,  men  do  not 
always  observe  formal  rules.  They  make  agreements  among 
themselves,  they  have  many  temporary  and  permanent  under- 
standings, and  they  hold  innumerable  conferences  of  every  sort 
which  are  unknown  to  law  but  which  are  nevertheless  indispen- 
sable in  carr3dng  on  the  operations  of  government.  It  is  apparent, 
therefore,  that  government  is  not  a  mechanical  thing,  but  when 
properly  understood  is  simply  an  association  of  men  engaged  in 
doing  certain  things  which  we  separate  from  the  ordinary  occu- 
pations of  life  and  call  "political." 

'  On  this  important  topic,  see  Bentley,  The  Process  of  Government. 
99 


100  American  Government  and  Politics 

The  particular  individuals  who  shall  be  selected  to  constitute 
the  governing  group;  the  organization  of  the  various  subdivisions 
of  the  government;  and  the  character  of  the  laws  the  group  in 
power  shall  make  and  enforce  are  matters  which  very  deeply 
concern  social  welfare  and  impinge  upon  many  private  interests. 
Inevitably  those  who  possess  the  power  of  determining  these 
matters,  which  affect  some  favorably  and  others  unfavorably, 
become  divided  into  groups.  Thus  poHtical  parties  originate; 
and  inasmuch  as  the  necessity  of  choosing  officers  and  deciding 
upon  poUcies  of  government  are  constantly  recurring,  each  polit- 
ical party  tends  to  become  a  permanent  organization,  with  offi- 
cers and  privates  standing  beside  and  mingling  with  the  group 
engaged  in  the  governing  process.  It  sometimes  happens  that 
the  leader  of  a  party  in  a  city  is  more  powerful  than  the  mayor;  ^ 
that  the  chairman  of  a  state  committee  controls  the  governor; 
and  that  the  chairman  of  the  national  committee  may  dictate 
terms  to  the  President  of  the  United  States.^  Furthermore,  it 
often  happens  that  the  officials  of  the  government  are  at  the 
same  time  officials  in  some  party  organization;  and,  generally 
speaking,  the  party  leaders  are  men  who  hold,  or  have  held,  or 
hope  to  hold  political  positions. 

The  relations  between  the  group  of  men  actually  engaged  in 
governing  and  the  group  of  men  constituting  the  party  in  power 
are  so  intimate  and  so  subtle  that  no  one  can  draw  the  line  sep- 
arating them,  and  say,  "Here  the  government  begins  and  the 
party  ends."  Even  the  chief  executive  of  the  United  States  is 
coming  to  be  regarded  as  the  greatest'  leader  of  his  party,^  and 
on  this  account  recent  Presidents  have  felt  justified  in  taking 
a  prominent  place  in  party  councils,  and  bringing  their  personal 
influence  to  bear  in  the  formulation  of  party  policies.  Moreover, 
each  party  in  Congress  has  its  congressional  committee  charged 
with  the  function  of  propagating  the  principles  of  the  party, 
advancing  its  interests  at  each  congressional  election,  and  secur- 
ing the  control  of  the  federal  legislature. 

It  is  not  only  in  elections  that  there  is  an  intimate  relation 
between  government  and  party.  Under  ordinary  circumstances, 
the  President,  in  performing  his  constitutional  duties,  is  bound 

^  See  Readings,  p.  125.  ^  Ibid.,  p.  169. 

^  For  Mr.  Taft's  view,  see  below,  chap,  x;  Readings,  p.  265. 


Political  Issues  in  the  Uiiited  States  loi 

to  consult  the  interests  of  his  paity,  .by.  taking  i;he;advicev  and 
counsel  of  its  leaders;  and  this  influence  of  party  runs  through- 
out the  entire  government.  Theoretically,  the  President  nomi- 
nates officials  with  the  advice  and  consent  of  the  Senate;  but  in 
actual  practice  the  President  does  not  have  a  free  hand  in  mak- 
ing nominations.  Quite  to  the  contrary;  the  nominations  for 
most  of  the  offices  are  made  in  close  consultation  with  the 
members  of  the  President's  party  in  the  Senate  or  in  the  House 
of  Representatives.  Theoretically,  the  President  should  formally 
consult  with  the  Senate  on  the  making  of  treaties;  practically 
many  an  important  treaty  is  settled  at  a  dinner-table,  where 
the  influential  party  members  in  the  Senate  are  present.  Theo- 
retically, laws  are  made  by  the  Senate  and  House  of  Represen- 
tatives; practically  they  are  made  by  the  party  in  power  under 
the  direction  of  the  party  leaders,  and  in  the  actual  process  of 
law-making  there  are  innumerable  joint  and  separate  party 
caucuses. 

To  many  persons  this  intimate  relation  between  government 
and  party  seems  undesirable,  and  no  doubt  many  evils  arise 
from  the  fact.  Nevertheless,  inasmuch  as  a  government  is  not  a 
mechanical  thing  to  be  operated  with  scientific  precision,  but  a 
human  institution,  with  a  policy  to  execute  and  duties  to  perform, 
parties  are  inevitable  —  as  inevitable"^s  the  separate  groups  and 
interests  from  which  spring  different  opinions  on  the  functions 
and  poHcies  of  the  government. 

Moreover,  three  features  in  the  structure  of  our  federal  system 
make  party  government  and  strong  party  organization  indis- 
pensable if  the  will  of  the  voters  is  to  be  realized.^  In  the  first 
place,  the  legislative  powers  are  divided  between  the  federal 
Congress  and  the  state  legislatures,^  so  that  if  a  party  has  a 
policy  that  requires  federal  and  state  legislation  it  must  be  in 
power  in  both  governments.  For  example,  if  a  party  wants  an 
interstate  commerce  law,  it  must  go  to  Washington;  if  it  wants  a 
supplementary  law  regulating  commerce  within  the  state  in  a 
manner  consistent  with  the  federal  law,  it  must  go  to  the  state 
legislatures.  If  a  party,  therefore,  has  a  systematic  and  rational 
poUcy  with  regard  to  the  important  questions  of  our  day  relative 
to  railway,  insurance,  and  trust  regulation,  it  must  embrace 

• 
*  This  is  the  thesis  of  Professor  Goodnow's  Politics  and  Administration, 


102  Americari'  Government  and  Politics 

within  its  pkiis  ied^'tal  arid  state  laws;  and  in  order  to  realize 
completely  its  policy,  it  should  be  strong  enough  to  control  state 
and  national  legislatures. 

/  In  the  second  place,  the  theory  of  the  separation  of  executive 
and  legislative  powers  serves  to  strengthen  the  political  party; 
for  popular  government,  as  is  now  generally  recognized,  requires 
the  coordination  of  the  executive  and  the  legislature.^  To  take 
a  homely  example  from  daily  life:  no  business  man  who  has  made 
up  his  mind  that  a  certain  thing  should  be  done  would  think  for 
a  moment  of  choosing  to  do  his  will  an  agent  who  was  bitterly 
opposed  to  the  plan;  and  yet  this  is  exactly  what  may  happen 
and  does  often  happen  in  American  government.  It  frequently 
occurs  that  the  legislature  of  a  state  is  Republican  and  the  gov- 
ernor Democratic;  that  is,  men  are  chosen  to  make  laws  which 
are  to  be  enforced  by  an  executive  whose  party  may  be  in  violent 
opposition  to  those  very  laws.  In  order,  therefore,  for  popular 
government  actually  to  exist,  it  is  necessary  that  those  who  have 
decided  upon  a  certain  public  policy  should  control  not  only  the 
makers  of  law,  but  also  the  principal  officials  charged  with  its 
execution.  In  England,  this  fact  is  frankly  recognized  in  the 
unwritten  constitution;  for  the  executive  branch,  that  is,  the 
Cabinet  composed  of  the  heads  of  departments,  is  selected  from 
the  party  which  has  a  majority  in  the  House  of  Commons.  The 
makers  of  the  law  and  those  charged  with  its  execution  are  one. 
In  the  United  States,  however,  this  coordination  of  the  legisla- 

(ture  and  the  executive  must  be  secured  outside  of  the  written 
law;  and  it  is  the  party  system  which  makes  it  possible.  It  is 
through  the  party  that  there  are  nominated  for  the  legislature 
and  executive  positions,  candidates  who  are  in  a  fair  degree  of 
harmony  with  one  another,  and  who,  if  elected,  can  work  con- 
sistently together  to  carry  out  the  will  of  the  voters  expressed  at 
the  ballot-box. 

In  the  third  place,  the  American  system  of  electing  so  many 

^pubHc  officers  both  facilitates  and  renders  necessary  strong  party 

organization.     In  almost  every  election  there  are  so  many  dif-| 

f  erent  officials  to  be  selected,  that  even  the  most  intelligent  citizen 

cannot  be  expected  to  make  a  wise  choice.     Accordingly,  he  is 

^  compelled  to  depend  more  or  less  upon  the  judgment  of  his  party;' 

^  Goodnow,  ibid.,  p.  24. 


Political  Issues  in  the  United  States  103 

and  in  actual  practice  he  often  follows  the  advice  of  President 
Harrison:  "Let  us  all  consider  the  history  and  declarations  of  the 
great  parties,  and  thoughtfully  conclude  which  is  more  Ukely  to 
promote  the  general  interests  of  our  people."  Having  selected 
his  party,  the  citizen  then  relies  largely  upon  the  integrity  and 
the  wisdom  of  its  leaders  in  the  selection  of  nominees  for  various 
offices.* 

Therefore,  the  close  relations  existing  between  the  government 
and  the  majority  party;  the  functions  of  the  party  as  an  instru- 
ment for  expressing  and  enforcing  public  will;  the  influence  of 
the  party  on  the  theory  and  practice  of  our  government;  and 
finally  the  position  of  the  party  as  the  organizing  and  directing 
force  in  American  political  life  —  these  factors  make  the  study 
of  party  poHtics,  in  its  origin  and  development,  quite  as  impor- 
tant as  the  study  of  the  framework  of  the  government. 

Origin  of  Parties  in  the  United  States 

On  no  matter  were  the  framers  of  the  federal  Constitu- 
tion in  more  complete  harmony  than  on  the  un^esirability 
of  party  poHtics.  It  must  be  remembered  that  they  worked 
at  a  time  when  the  modern  democratic  idea  of  an  unlimited^ 
and  responsible  government  was  not  recognized.  The  govern- 
ment of  England,  which  was  their  principal  model,  had  not 
reached  its  present  form,  in  which  the  king  reigns  but  does 
not  rule,  while  the  majority  in  the  House  of  Commons  controls 
all  the  executive  officers  through  whom  the  actual  administration  • 
is  carried  on.  England's  government  in  the  eighteenth  century 
had  passed  out  of  the  absolute  stage  in  which  the  king  made  laws, 
appointed  ministers,  declared  war,  and  conducted  foreign  affairs 
at  his  own  pleasure;  but  it  had  not  passed  into  that  modern  stage 
in  which  the  will  of  the  electors,  expressed  through  the  party, 
dominates  the  whole  machinery  of  government.^  When  our 
forefathers  were  busy  framing  the  federal  Constitution,  the 
English  government  was  at  a  halfway  point  between  these  two 
stages.  Party  government  was  not  then  frankly  recognized; 
it  was  not  finally  settled  that  the  king  must  select  his  ministers 
from  the  party  in  power;  and  the  democratic  doctrine  that  the 

•  On  this  point,  see  below,  chaps,  xxiii  and  xxx. 

^  See  J.  Allen  Smith's  suggestive  work,  The  Spirit  of  American  Government. 


\y 


1 


H 


104  American  Government  and  Politics 

will  of  the  electors  must  control  the  legislature  and  the  executive 

was  not  yet  accepted.  Nevertheless,  the  possibility  of  demo- 
.cratic  government  was  known  and  feared,  and  in  framing  our 
/federal  Constitution,  the  members  of  the  Convention,  as  we  have 

seen,  had  constantly  in  mind  plans  to  break  the  force  of  majority 

rule.  -  -^    - ' 

^     The  Fathers  not  only  sought  to  check  the  growth  of  party 
control  by  structural  devices  in  the  government.     After  the 
new  system  had  gone  into  effect,  they  found  themselves  in  the 
possession  of  the  offices,  and   they  naturally  deprecated  oppo- 
sition, which  they  attributed  to  "the  factional  spirit  of  party." 
Washington,  in  his  farewell  address,  strongly  admonished  his 
v-countrymen  against  cherishing  this  partisan  feeling.     "There 
^  is  an  opinion,"  he  said,  "that  parties  in  free  countries  are  useful 
/  checks  upon  the  administration  of  the  government,  and  serve 
I    to  keep  alive  the  spirit  of  liberty.     This,  within  certain  limits, 
\  is  probably  true,  and  in  governments  of  a  monarchical  class  pa- 
triotism may  look  with  indulgence,  if  not  with  favor,  on  the  spirit 
of  party.     But  in  those  of  a  popular  character,  in  governments 
purely  elective,  it  is  a  spirit  not  to  be  encouraged." 

At  its  very  inauguration,  the  new  federal  government  passed 
largely  into  the  hands  of  that  powerful  and  conservative  group 
of  men  who  had  been  most  instrumental  in  framing  or  ratifying 
the  Constitution.  Washington,  the  president  of  the  Philadelphia 
convention,  became  the  first  President  of  the  United  States; 
Ellsworth,  W.  S.  Johnson,  Langdon,  Paterson,  Robert  Morris, 
Bassett,  and  Read  were  among  the  Senators  in  the  new  Congress; 
Madison,  Oilman,  Roger  Sherman,  Carroll,  and  Elbriclge  Gerry 
were  in  the  House  of  Representatives.  Hamilton,  who  had 
perhaps  done  more  than  any  other  man  to  bring  about  the 
establishment  of  the  new  system,  was  given  the  important  post  of 
Secretary  of  the  Treasury;  Randolph  from  Virginia  was  made 
Attorney-General;  John  Jay  of  New  York,  John  Rutledge  of 
South  Carolina,  William  Gushing  of  Massachusetts,  Robert  H. 
Harrison  of  Maryland,  James  Wilson  of  Pennsylvania,  and  John 
Blair  of  Virginia,  constituted  the  first  Supreme  Court. 

The  new  government  was  not  in  operation  very  long  before 
its  policies  began  to  arouse  antagonism.  Under  the  direction 
of  Hamilton,  the  administration  took  firm  and^ite«ided  measures 
toward  estabUshing  the  credit  of  the  United  States  on  a  sound 


Political  Issues  in  the  United  States  105 

basis.  They  made  provision  for  the  payment  of  every  penny  of 
the  national  debt  and  the  accrued  interest  at  full  valiie,  and,  in 
spite  of  great  opposition,  they  assumed  the  Revolutionary  obli- 
gations incurred  by  the  states.  To  carry  out  this  policy,  they 
established  a  United  States  Bank,  notwithstanding  the  constitu- 
tional objections  urged  against  it  by  Jefferson  and  his  friends.^ 
It  was  Hamilton's  avowed  policy  to  gain.fQr.the-fiew  ^governmend  \/^ 
the  support  of  the  capitalists  by  Unking  their.  in|,erests  with  its 
fate. 

While  providing  revenues  they  frankly  used  the  taxing  power, 
at  the  very  beginning,  to  protect  American  manufacturers  against 
European  competition.  When  the  customs  duties  failed  to  bring 
in  sufficient  returns,  it  became  necessary  to  impose  some  other 
form  of  taxes.  By  the  act  of  1791  Congress  laid  certain  duties 
upon  spirits,  which  stirred  the  distillers  to  rebellion;  in  1794  a 
tax  was  laid  on  carriages,  auction  sales,  and  certain  manufac- 
tures; and  in  1798  a  direct  tax  was  laid  on  dwelling-houses  and 
lots  and  on  slaves  between  the  ages  of  twelve  and  twenty.  More- 
over, the  expenditures  of  the  new  government  rose  rapidly,  with 
some  fluctuations,  from  $3,097,000  in  1791  to  $7,309,000  in  1795 
and  to  $9,295,000  in  1799.^ 

These  measures  speedily  aroused  large  and  important  classes  (^ 
to  opposition.     Agriculturists  and  persons  with  no  commercial 
or  financial  interests  and  no  government  bonds  were  greatly 
extited  over  what  appeared  to  them  to  be  the  transference  of  the 
government  into  the  hands  of  powerful  commercial  and  financial  I 
groups.    They  wanted  the  federal  government  to  be  as  inexpen- ' 
sive  as  possible,  and,  therefore,  they  wished  to  restrain  its  opera- 
tion within  the  narrowest  limits  under  a  strict  interpretation  of 
the   Constitution.     They  wanted   to  buy  their  manufactured 
commodities  as  cheaply  as  possible  from  the  more  advanced 
European  states  where  they  could  find  also  a  profitable  market 
for  their  own  raw  products.     Finally,  the  direct  taxes  and  the 
excise  on  whiskey  were  sharply  resented  by  the  taxpayers,  and,  ^ 
as  every  one  knows,  the  liquor  duty  brought  about  a  brief  armed 
opposition  known  as  the  "Whiskey  Rebellion."     Thus  the  poUcy 
of  the  new  administration  called  forth  a  sharp  antagonism  based  ^ 
on  economic  interests.  ""^  ^^ 


See  Readings,  pp.  62  and  237. 

Dewey,  Financial  History  of  the  United  States,  p.  m. 


io6  American  Government  and  Politics 

Thejoreignpolicy  of  the  new  government  added  to  the  irri- 
tationstarte3"15y  the  domestic  poHcy.  In  the  very  spring  in 
which  Washington  was  inaugurated  with  such  an  acclaim  in  Wall 
Street,  the  Estates  General  met  at  Versailles  and  began  the  first 
scene  in  the  great  drama  of  the  French  Revolution;  in  1791  a 
new  constitution  was  put  into  effect  and  the  power  of  the  king 
was  practically  destroyed;  the  next  year  the  first  French  republic 
was  estabHshed;  and  in  1793  Louis  XVI  was  executed,  and  war 
was  declared  on  England.  These  events  were  watched  with 
deep  interest  by  American  citizens.  In  the  beginning,  the 
effort  of  the  French  people  to  estabUsh  constitutional  government 
was  almost  universally  approved  in  the  United  States;  but  as 
K  the  disorders  of  the  revolution  followed  in  rapid  succession,  con- 
servative Americans  began  to  draw  back  in  horror. 

The  more  radical  elements  of  the  population,  however,  fresh 
from  their  own  triumph  over  George  III,  recalled  with  satis- 
faction the  execution  of  Charles  I  by  their  own  ancestors,  and 
took  advantage  of  the  occasion  to  rejoice  in  the  death  of  another 
ruler  —  the  French  monarch.  The  climax  came  in  1793,  when 
France  called  on  the  United  States  to  fulfil  the  terms  of  the 
treaty  of  1778,  in  return  for  the  assistance  which  had  been  given 
to  the  Revolutionists  in  their  struggle  with  England.  The 
radicals  wanted  to  aid  France,  either  openly  or  secretly,  in  her 
war  on  England,  but  Washington  and  his  conservative  sup- 
porters refused  to  be  drawn  into  the  European  controversy. 
Thus  the  Americans  were  divided  into  contending  groups. 
Burke's  Reflections  on  the  French  Revolution  and  Paine's  memo- 
rable reply.  The  Rights  of  Man,  were  read  and  debated  with 
extraordinary  interest  and  zeal. 

Thus  a  long  chain  of  circumstances  led  to  the  formation  of 
wo  parties:  the  Federalists,  and  the  opposition  known  in 
"tlie  beginning  as  the  Anti-Federalists,  but  later  as  the  RepubH- 
cans  or  Democrats,  the  two  terms  being  used  synonymously 
and  sometimes  joined  together.  The  Federalists  were  deeply 
angered  by  this  antagonism  to  what  they  regarded  as  their  pa- 
triotic efforts  in  behalf  of  the  nation.  Chief  Justice  Ellsworth, 
in  a  charge  to  a  grand  jury  in  Massachusetts,  denounced  "the 
French  system  mongers  from  the  quintumvirate  at  Paris  to  the 
Vice-President  [Jefferson],  and  the  minority  in  Congress  as  the 
apostles  of  atheism,  anarchy,  bloodshed,  and  plunder."    Hamil- 


Political  Issues  in  the  United  States  107 

ton,  Jay,  and  John  Adams,  realizing  the  seriousness  of  the  oppo-^ 
sition,  began  to  organize  their  followers  for  poUtical  warfare/ 
and  in  the  second  presidential  election  a  real  campaign  was 
waged.  It  is  true,  Washington  was  unanimously  reelected, 
although  not  without  criticism;  but  Adams,  the  Federalist  can- 
didate for  Vice-President,  secured  only  77  of  the  132  electoral 
votes,  the  other  55  going  to  the  Anti-Federalist  candidates.  In 
the  third  presidential  election  the  party  alignment  was  complete.  A^^ 
Jefferson,  the  leader  of  the  Anti-FederaHsts,  was  roundly  de- 
nounced as  an  atheist  and  leveller,  while  Adams,  the  Federalist 
candidate,  was  characterized  by  his  opponents  as  "the  mon- 
archist." ^  So  sharply  drawn  was  the  contest  that  Adams  was 
chosen  by  the  narrow  plurality  of  only  three  electoral  votes. 

During  Adams'  administration  a  series  of  events  thoroughly 
discredited  the  Federalist  party.  AdamS  was  lor  a  time  popular, 
principally  on  accoimt  of  his  early  attitude  toward  France  for 
the  mistreatment  of  our  representatives,  but  that  popularity 
was  short-Hved.  The  Republican  newspapers  heaped  the  most 
indiscriminate  abuse  upon  the  head  of  the  President  and  the. 
FederaUsts  generally,  and  as  a  result  Congress  pushed  through 
the  Alien  and  Sedition  Acts  —  the  first  authorizing  the  President  / 
to  expel  certain  aUens  who  might  be  deemed  dangerous  to  the 
safety  and  peace  of  the  country,  and  the  second  making  the  ^ 
publication  of  libels  on  Congress  or  the  President  a  crime. 

Under  the  Sedition  Act  many  of  the  Anti-FederaUsts  were 
sharply  punished  for  what  would  seem  to  us  trivial  criticisms 
of  the  administration.  For  example,  Callender,  a  friend  of  ^ 
Jefferson,  was  convicted  for  saying,  among  other  things,  "Mr. 
Adams  has  only  completed  the  scene  of  ignominy  which  Mr. 
Washington  began."  The  Sedition  Act,  especially,  seemed  to  be 
in  flat  contradiction  to  those  amendments  to  the  federal  Consti- 
tution securing  freedom  of  press  and  speech  against  federal  in- 
terference, and  undoubtedly  it  was  unconstitutional.  These 
laws  called  forth  the  famous  Kentucky  and  Virginia  Resolutions,  ^ 
and  convinced  even  those  moderately  inclined  towards  democ- 
racy that  Federalism  meant  an  unwarranted  extension  of  the 
powers  of  the  federal  government  and  perhaps  the  estabUsh- 

'  For  Jefferson's  view  of  the  difiference  between  the  Federalists  and  Anti- 
Federalists,  see  Readings,  p.  92. 


io8  American  Government  and  Politics 

ment  of  party  tyranny.    At  all  events,  these  laws  marked  the 
death  knell  of  the  FederaUst  party. 

It  is  true  that  Adams,  the  Federalist  candidate  for  the  presi- 
dency in  the  election  of  1800,  made  a  respectable  showing  —  poll- 
ing 65  electoral  votes  against  the  73  received  by  Jefferson;  but 
in  the  next  election  the  Federalists  were  completely  humiliated, 
their  candidate,  Pinckney,  receiving  only  14  out  of  the  176 
electoral  votes.  Even  Massachusetts  and  New  Hampshire, 
the  strongholds  of  Federahsm,  went  heavily  for  Jefferson.  The 
FederaUsts,  however,  made  a  feint  at  resistance  until  1816,  in 
which  year  their  canciidate,  Rufus  King,  received  34  out  of  217 
electoral  votes;  but  after  that  presidential  election  they  disap- 
peared altogether  as  a  national  party. 

It  would  be  a  mistake  to  suppose,  nevertheless,  that  the 
triumph  of  the  Jeffersonians  meant  an  entire  repudiation  of  the 
principles  of  the  Federalists.  Indeed,  quite  the  contrary  hap- 
pened. In  the  purchase  of  the  Louisiana  territory  the  Anti- 
,_  Federalists  stretched  the  Constitution  to  such  an  extent  that 
*  Hamilton's  Bank  Act  seemed  insignificant.  Furthermore, 
in  181 6,  the  second  United  States  Bank  was  established,  and 
when  it  came  to  the  settlement  of  the  revenue  system  after  the 
war  of  181 2,  the  leaders  of  the  Democratic-Republican  party 
finally  adopted  a  sweeping  protective  tariff  on  the  broadest 
possible  nationalist  basis.     Thus  it  may  be  said  that,  while  the 

I     Anti-Federalists  ruined  the  opposing  party,  they  were  compelled 

I     to  adopt  its  more  fundamental  principles.^ 

'  The  Rise  of  Western  Democracy 

During  the  period  from  1816  to  1828  American  politics  took 
on  an  aspect  of  personal  and  factional  dispute.  Federalist 
organizations  had  disappeared,  and  the  Republican  party  seemed 
^  to  embrace  in  its  ranks  the  entire  electorate.  Political  feeUng, 
however,  ran  high,  but  the  leaders  were  unable  to  group  the 
electors  into  two  great  contending  parties.  They  searched  about 
for  principles  upon  which  to  reorganize  the  political  fragments, 
but  they  were  unable  to  agree  upon  any  set  of  doctrines  that 
would  produce  the  desired  effect.^ 

Meanwhile  there  were  going  on  certain  fundamental  econQnaio-^ 

Burgess,  The  Middle  Period,  pp.  i  fif.  ^  Shepard,  Van  Buren,  p.  92. 


Political  Issues  in  the  United  States  109 

changes,  the  significance  of  which  was  not  appreciated  by  con-    / 
lerr^orary  observers,  but  which  were  destined  to  give  an  entirely^ 
new  direction  to  American  political  life.     These  great  changes 
were  connected  with  the  conquest  and  settlement  of  the  Great  / 
Northwest,  and  the  transformation  of  slavery  from  a  domestic 
to  a  capitaUstic  institution  by  the  extension  of  cotton  culture  *^ — 
into  the  Southwest.     The  balance  of  power  was  being  shifted 
from  the  seaboard  states  to  the  West,  and  within  the  eastern  5 
states  industries  were  rising  which  were  destined  to  overthrow 
the  landed  aristocracy.     Kentucky  was  admitted  to  the  Union 
in  1792,  Tennessee  in  1796,  Ohio  in  i8o«,  Louisiana  in  1812,^ 
Indiana  in  1816,  Illinois  in  1818,  Mississippi  in  1817,  Alabama' 
in  1819  and  Missouri  in  182 1. 

In  these  western  states  there  existed  ^^a^tyge^of^^^^cononiic 
s^pciety  such  as  had  never  before  appeared  in  the  history  oFSie 
worlH"  and  never  can  exist  again,  at  least  on  a  large  scale.  They 
were  settled  by  hardy  and  restless  pioneers  who  crossed  the 
mountains,  cut  down  the  forests,  built  their  log  cabins,  and 
founded  homes.  In  the  possession  of  this  world's  goods  they 
were,  for  the  most  part,  substantially  equal;  it  was  easy  to  ac- 
quire land,  and  any  thrifty  and  industrious  pioneer  with  his  family 
could  readily  secure  the  comforts  of  a  rude  but  healthful  and 
independent  life.  In  the  log  cabins  of  these  pioneers  were 
developed  political  ideas  fundamentally  different  from  those 
entertained  by  the  rich  merchants  of  the  East  or  the  aristocratic  i^ 
landholders  in  their  manors  along  the  Hudson. 

Here  in  the  West  there  existed  a  substantial  economic  e^uaUty, 
and  it  seemed  at  last  that  the  levelling  theories  oi"  Jeherson  were 
being  realized  on  a  large  scale.  Owing  to  the  simple  life  which 
they  lived,  government  was  to  them  a  simple  thing;  any  one  . 
could  hold  the  office  of  sheriff,  county  clerk,  road  supervisor,  -|— 
state  auditor,  or  governor.  As  the  duties  of  the  offices  were 
slight  and  easily  understood,  and  the  emoluments  connected 
with  them  attractive,  especially  to  men  who  earned  their  bread 
with  the  axe  and  plough,  the  western  settlers  seized  with  eager- 
ness  upon  the  doctrine  of  short  terms..and  xot.atk?Ii.  in  officev*^ 

These   western    communities,    moreover,    needed    capital    to 
develop  their  latent  resources,  to  complete  highways  and  con- 
See  above,  p.  94. 


no  American  Government  and  Politics 

struct  canals,  and  to  rear  industries;  and  for  this  capital  they 
were  compelled  to  look  principally  to  the  accumulations  of  the 
East.  This  necessity  made  them  dependent  largely  upon  east- 
ern financiers,  and  they  determined  if  possible  to  rid  themselves 
^  of  this  dependence  by  the  establishment  of  state  banks,  issuing 
J—  paper  money  in  large  quantities  with  but  slight  basis  for  redemp- 
^  tion.  It  is  easy  to  ridicule  western  theories  as  to_fiatt  money, 
but  when  one  appreciates  the  grinding  necessities  of  the  frontier 
life  he  can  understand,  even  if  he  does  not  approve,  its  financial 
devices. 
The  industrial  revolution  in  England  and  the  invention  of  the 
V^ cotton  gin  created  an  enormous  demand  for  raw  cotton,  which 
brought  about  a  revolution  in  the  agricultural  system  of  the 
South.  In  the  place  of  the  old  plantations,  where  masters  and 
slaves  dwelled  side  by  side  from  generation  to  generation,  thus 
mitigating  the  bondage  of  slavery  by  a  somewhat  patriarchal 
relalion,  there  came  a  new  type  of  plantation,  on  which  slaves 
bred  in  the  older  states,  or  snatched  away  from  Africa,  in  spite 
of  the  law,  were  herded  together  and  worked  with  less  regard 
for  human  considerations  than  in  older  states.  With  the  demand 
for  cotton  came  the  demand  for  more  territory.  The  bonds  of 
the  old  South  were  burst  asunder,  and  an  irresistible  pressure 
for  the  extension  of  the  soil  available  for  cotton  culture  set  in, 
and  swept  everything  before  it.  The  slave  population  increased 
rapidly;  the  lust  for  money  seized  the  dominant  class  as  it  seized 
the  mill-owners  in  England.  Thus  slavery,  once  condemned  or 
merely  condoned,  became"  intrenched,  and  it  thereupon  inevi- 
tably drew  to  its  defence  the  best  intellectual  strength  of  the 
South. 

East,  as  well  as  West  and  South,  a  revolution  was  going  on. 
The  industries  of  New  England  and  the  middle  states,  which  had 
been  begun  in  colonial  times  and  had  been  fostered  under  the 
protective  tariff  after  Independence  and  especially  after  the  War 
of  1812,  began  to  take  on  a  new  life.  Mechanics  from  England 
came  in  large  numbers,  bringing  with  them  the  designs  of  ma- 
chines which  had  so  recently  wrought  the  revolution  in  English 
industry.  In  1807,  Fulton  inaugurated  steam  navigation  on 
the  Hudson;  and  far  and  wide  hamlets  were  transformed  into 
manufacturing  centres  through  the  magic  of  steam.  The  tide 
of  immigration  from  Europe  steadily  increased,  and  most  immi- 


Political  Issues  in  the  United  States  iii 

grants  found  their  homes  in  the  growing  cities  of  the  East.  In 
the  twenty  years  from  1800  to  1820  the  population  of  Boston 
almost  doubled,  while  that  of  New  York  rose  from  60,000  in  1800 
to  123,700  in  1820.  Owing  to  the  property  qualifications  placed 
on  the  suffrage  by  the  constitutions  of  the  eastern  states,  most 
of  these  immigrants  and  the  native  workers  in  the  factories  were 
excluded  from  the  right  to  vote;  but  before  the  first  quarter  of 
the  ninete^enth  century  had  elapsed,  the  restrictions  on  the  suf- 
frage began  to  be  relaxed. 

Here  were  the  changed  social  conditions  which  made  the  United 
States  of  1825  as  different  from  the  United  States  of  Washing- 
ton's day  as  the  England  of  Cobden  and  Bright  was  different 
from  the  England  of  BoUngbroke  and  Walpole.  The  landed, 
financial,  and  industrial  interests  of  New  England  and  the  middle 
states  had  now  aligned  against  them  the  diverse  interests  of  the 
laboring  classes,  the  frontiersmen  of  the  West,  and  the  slave- 
owning  cotton  producers.  In  1828,  there  was  found  a  standard- 
bearer  who,  curiously  enough,  seemed  to  represent  all  of  these 
diverse  elements  as  against  the  older  ruling  aristocracy  of  the 
East.  This  standard-bearer  was  Andrew  Jackson,  a  resident  of 
Tennessee,  a  bold  frontiersman,  immensely  popular  on  account 
of  his  triumph  over  the  English  at  New  Orleans  and  his  unquali- 
fied championship  of  what  he  called  "the  rights. of  the  people." 
Triumphantly  elected,  and  feeling  behind  him  the  irresistible 
pressure  of  popular  support,  he  began  an  executive  policy  which  ^ 
seemed  for  a  time  to  transfer  the  seat  of  government  from  the 
capitol  to  the  White  House.  He  adopted  the  most  novel  notions 
on  the  rights  of  the  President  under  the  Constitution;  *  he  ousted 
the  old  office-holding  aristocracy  without  regard  to  appearances 
and  circumstances,  and  placed  his  friends  and  supporters  in  office ; 
he  destroyed  the  United  States  Bank,  the  stronghold  of  power- p^ 
ful  financial  interests,  in  spite  of  the  opposition  raised  up  against 
him  in  Congress;  and  when  nullification  appeared  in  South 
Carolina  he  issued  a  ringing  proclamation  which  showed  that  he 
was  a  stanch  defender  of  nationalism  as  against  states'  rights. 

For  a  time  it  looked  as  if  Jackson  was  destined  to  sweep  every- 
thing before  him,  and  his  second  election  seemed  to  confirm  him 
in  his  opinion  that  he  was  opposed  only  by  maUgnant  minority 

*  See  Readings,  p.  190. 


112  American  Government  and  Politics 

factions.  Nevertheless,  the  elements  of  opposition  to  Jackson's 
pohcy  steadily  gained  in  strength.  The  members  of  the  old 
ruling  aristocracy  dreaded  the  dominance  of  a  man  whom  they 
regarded  as  an  ignorant  and  violent  military  chieftain  backed 
by  the  vehement  passions  of  the  populace.  The  banking  and 
financial  interests  of  the  East  had  every  reason  to  fear  that  a 
calamity  would  inevitably  follow  the  destruction  of  the  United 
States  Bank  and  the  flooding  of  the  country  with  paper  money 
through  the  state  banks;  many  southern  Democrats,  who  sym- 
pathized with  the  nullification  policy  of  South  Carohna,  turned 
against  Jackson  for  his  determined  stand  against  the  action  of 
that  state.  Furthermore,  there  was  a  well-organized  group  of 
eastern  manufacturers  who  wanted  to  extend  the  system  of  pro- 
tective tariff  beyond  the  point  Jackson  was  willing  to  go.  Nat- 
urally 'Jackson  raised  up  against  himself  many  disappointed 
office-seekers,  as  well  as  the  old  office-holders  whom  he  turned  out. 
There  was  also  in  the  West  a  growing  number  who  wanted  to 
secure  larger  federal  grants  for  internal  improvements  than 
he  was  willing  to  concede.^ 

These  elements  of  opposition  were  brought  together  in  the 
National  Republican  or  Whig  party,  which  numbered  among 
its  famous  leaders  J.  Q.  Adams,  Webster,  and  Clay.  It  would 
be  wrong,  however,  to  attribute  the  rise  of  this  new  party  wholly 
to  Jackson's  personal  policy.  Even  before  his  advent  to  power, 
the  political  factions  into  which  the  nation  seemed  divided  were 
beginning  to  segregate  into  two  fairly  distinct  groups  —  one 
under  the  leadership  of  Adams  and  Clay  and  the  other  composed 
of  the  Jackson-Calhoun-Crawford  groups.^  The  first  of  these 
two  aggregations  was  incUned  toward  a  broadly  nationaUst  pol- 
icy with  regard  to  internal  improvements  and  the  protective 
tariff,  and  the  second  took  the  more  particularist  or  states'  rights 
view  which  would  restrict  the  activities  of  the  federal  govern- 
ment to  the  narrowest  limits. 

Jackson's  high-handed  policy  in  destroying  the  Bank,  and  his 
fondness  for  "strong  executive  government,"  simply  helped  to 
consolidate  more  effectively  certain  of  the  nationaUst  elements 
into  the  National  Republican  party,  which  soon  received  the 

*  For  Horace  Greeley's  description  of  the  Whig  party,  see  Readings,  p.  94. 
^  Burgess,  Middle  Period,  p.  146. 


Political  Issues  in  the  United  States 


113 


name  *' Whig"  —  a  title,  taken  from  English  politics,  which  sig- 
nified ''opposition  to  high  executive  prerogative  and  approval 
of  congressional  control  over  the  President."  As  the  contest 
with  Jackson  widened,  the  term  Whig  gradually  supplanted  the 
official  title  National  Repubhcan. 

This  party  lasted  nominally  from  1828  to  1852.  It  put  for- 
ward Clay  as  its  candidate  in  1832,  only  to  meet  certain  defeat; 
and  it  enjoyed  only  two  brief  triumphs.  In  1840  it  elected 
WilUam  Henry  Harrison,  a  popular  hero,  without  having  made 
any  declaration  of  principles  at  all;  and  after  the  second  defeat 
of  its  candidate.  Clay,  in  1844,  it  again  had  recourse,  at  the 
succeeding  election,  to  a  miHtary  hero.  General  Taylor,  and  was 
victorious.  The  Whigs,  finding  it  impossible  to  agree  among 
themselves  on  the  impending  question  of  slavery,  tried  to  evade 
the  real  issue  by  nominating,  in  1852,  another  military  man. 
General  Scott;  but  his  overwhelming  defeat  was  an  evidence 
that  the  doom  of  the-  party  had  come. 

The  Rise  and  Growth  of  the  Republican  Party 

Great  events  were  forcing  a  new  alignment  of  parties.  Though 
the  abolitionists  were  few  in  number,  they  carried  on  such  a 
vigorous  agitation  that  the  slavery  question  was  forced  to  the 
front,  in  spite  of  the  best  efforts  of  the  politicians  to  obscure  it. 
The  aboUtionists,  however,  did  not  constitute  a  political  party 
of  any  weight.  The  opponents  of  slavery  organized  a  conven- 
tion at  Buffalo  in  1843,  and  nominated  James  G.  Birney  as  can- 
didate for  President  on  "the  principles  of  1776,"  but  Birney 
polled  only  about  62,000  out  of  some  2,600,000  votes  in  the  elec- 
tion of  the  following  year.  Four  years  later  another  anti- 
slavery  convention,  held  at  Buffalo,  nominated  Van  Buren  on  a 
platform  of  opposition  to  slavery  in  the  territories;  but  this 
party,  known  as  the  "E^Jijil"  party,  only  polled  about  290,000 
votes.  In  the  campaign  of  1852,  the  Free  Soil  party  declared: 
"No  more  slave  states,  no  slave  territory,  no  nationalized  sla- 
very, and  no  national  legislation  for  the  extradition  of  slaves"; 
but  its  candidate,  Hale  of  New  Hampshire,  received  only  156,000 
votes. 

Events,  as  well  as  agitation,  however,  were  making  slavery 
the  issue.  The  war  with  Mexico  had  added  to  the  territory  of 
I 


114  American  Government  and  Politics 

the  United  States  a  large  domain  comprising  California,  Utah, 
Nevada,  Arizona,  and  portions  of  Colorado  and  New  Mexico; 
and  the  organization  of  this  territory  became  at  once  the  burning 
issue.  A  heated  debate  in  Congress  culminated  in  the  compro- 
mise of  1850:  Utah  and  New  Mexico  were  organized  as  terri- 
tories with  or  without  slavery  as  their  future  constitutions  might 
prescribe,  and  the  slave  trade  in  the  District  of  Columbia  was 
abolished,  the  South  receiving  its  full  value  in  an  act  for  the  more 
efficient  rendition  of  fugitive  slaves.  The  enforcement  of  this 
last  provision  by  federal  officers  in  northern  states  brought  sla- 
very home  to  the  people  of  northern  cities  and  hamlets,  and  made 
it  odious  to  thousands  who  had  formerly  been  indifferent  to  it. 
The  climax  came,  however,  with  the  Kansas-Nebraska  act 
(1854)  expressly  repealing  that  provision  of  the  Missouri  Com- 
promise which  excluded  slavery  from  the  northern  portion  of  the 
Louisiana  purchase,  and  reopening  a  sore  controversy  which 
opponents  of  slavery  in  the  territories  had  thought  forever  closed. 
On  the  very  morning  after  the  House  of  Representatives  took 
up  the  Kansas-Nebraska  bill,  several  members  of  that  body  held 
a  meeting  on  the  call  of  Israel  Washburn,  and  agreed  that  the 
advance  of  the  slave  power  could  be  checked  only  by  the  for- 
mation of  a  new  party,  to  be  known  as  the  Republican  party. 
This,  however,  cannot  be  called  the  origin  of  that  party,  for 
before  the  repeal  of  the  Missouri  Compromise  a  meeting  had 
been  held  at  Ripon,  Wisconsin,  and  a  resolution  had  been  adopted 
to  the  effect  that  a  new  organization,  to  be  called  Republican, 
should  be  formed  on  the  question  of  slavery  extension,  if  the  bill 
passed.  Indeed,  all  throughout  the  North  and  East  there  were 
signs  of  the  dissolution  of  the  old  parties  and  a  general  reorgani- 
zation. Many  newspapers,  with  the  New  York  Tribune  under 
Horace  Greeley  in  the  lead,  were  advocating  a  new  party  aUgn- 
ment,  and  in  the  spring  and  summer  of  1854  meetings  were  held 
in  Illinois,  Maine,  Vermont,  Michigan,  Iowa,  Ohio,  Indiana, 
Massachusetts,  and  New  York  at  which  the  Kansas-Nebraska 
bill  was  roundly  denounced.  At  length,  on  July  6,  1854,  a  state 
convention  was  held  at  Jackson,  Michigan,  and  a  full  state  ticket 
of  Repubhcan  candidates  was  nominated.  The  congressional 
elections  of  1854  revealed  the  strength  of  this  movement,^  for 

1  J.  F.  Rhodes,  History  of  the  United  States,  Vol.  II,  pp.  58-67. 


Political  Issues  in  the  United  States  115 

\ 
in  the  new  Congress  there  were  117  Representatives  and  11 

Senators  in  the  Anti-Nebraska  party. 

This  new  Republican  party  held  its  first  national  convention 
at  Philadelphia  in  June,  1856,  on  a  call  issued  by  a  preliminary 
meeting  assembled  at  Pittsburg  in  the  preceding  February.  At 
this  convention  Delaware,  Maryland,  Virginia,  and  Kentucky 
were  represented,  as  well  as  all  the  northern  states  and  some  terri- 
tories. Fremont  was  nominated  as  the  candidate  on  a  platform 
which  declared  that  it  was  the  right  and  duty  of  Congress  to 
prohibit  in  the  territories  those  "relics  of  barbarisnj,  polygamy 
and  slavery."  In  the  campaign  which  followed,  Fremont  polled 
1,341,264  votes  against  1,838,169  polled  by  Buchanan,  and 
received  in  all  114  electoral  votes  as  against  182  for  his  two 
opponents,  Buchanan  and  Fillmore. 

By  this  time  the  Democratic  party  had  taken  a  pretty  clear 
stand  on  the  question  of  slavery.^  It  asserted  that  Congress  had 
no  control  over  the  domestic  institutions  of  the  several  states, 
and  deprecated  the  agitation  of  the  abolitionists;  it  announced 
its  adherence  to  the  compromise  measure  of  1850,  and  declared 
that  it  would  resist  all  attempts  at  renewing  the  agitation  of  the 
slavery  question  in  Congress  or  out  of  it.  In  the  final  contest  ot 
i860,  however,  the  Democrats  spHt  into  two  factions,  one  headed 
by  Stephen  A.  Douglas,  who  hoped  to  solve  the  slavery 
question  by  allowing  the  people  of  each  territory,  on  their  ad- 
mission to  the  Union  as  a  state,  to  decide  for  themselves;  and 
the  other  by  John  C.  Breckinridge,  who  stood  on  a  platform  ad- 
vocating the  extreme  southern  view  that  Congress  had  no  power 
to  prevent  slavery  in  the  territories.^ 

During  the  four  years  which  followed  its  first  national  conven- 
tion, the  Republican  party  steadily  gained  in  strength.  It  found 
its  most  effective  support  among  the  northern  farmers,  who  be- 
lieved that  slavery  should  be  excluded  from  the  great  western 
territories,  in  order  that  homesteads  might  be  erected  there  by 
free  men ;  and,  indeed,  it  has  been  called  "The  Homestead  Party  " 


*  For  the  Democratic  platform  of  1852,  see  Readings,  p.  95. 

^  After  the  split  of  the  Democratic  party  in  i860,  a  small  group  taking  the 
name  of  the  Constitutional  Union  party  held  a  convention  in  Baltimore  and 
nominated  John  Bell,  of  Tennessee,  on  a  platform  that  begged  the  whole 
slavery  question.    Bell  received  39  electoral  votes. 


ii6  American  Government  and  Politics 

by  an  eminent  publicist.^  To  the  homestead  element  were  added 
the  manufacturing  interests  of  the  East,  which  were  clamoring  for 
more  protection  against  European  competition.^  The  alliance  of 
these  two  great  forces  made  a  formidable  party  —  not  an  aboli- 
tionist party,  but  a  homestead  and  protective  tariff  j)arty,  stand- 
ing for  the  exclusion  of  slavery  from  the  territories.  This  party 
held  its  second  convention  at  Chicago  in  i860,  and  nominated 
Abraham  Lincoln  of  Illinois  and  Hannibal  Hamlin  of  Maine. 
Owing  to  the  dissensions  in  the  ranks  of  the  Democrats,  it  was 
able  to  carry  the  election  by  a  popular  vote  of  1,866,452  against 
a  total  vote  of  2,815,617  for  the  three  opponents.  Mr.  Lincoln 
received  180  electoral  votes,  Breckinridge  72,  Douglas  12,  and 
Bell  39. 

As  the  southern  leaders  had  warned  the  North,  the  election  of 
Mr.  Lincoln  precipitated  the  long-impending  crisis.  When  the 
Civil  War  broke  out  many  northern  Democrats  came  to  the 
support  of  the  administration,  but  throughout  the  armed  conflict 
a  large  number  of  them  adopted  an  attitude  of  hostility  toward 
the  policy  of  the  Republican  administration  and  openly  sympa- 
thized with  the  Confederate  states. 

The  Republicans  were  therefore  compelled  to  rally  to  their 
support  everyone  who  believed  in  a  strong  union  poHcy,  regardless 
of  his  previous  political  affiliations,  and  thus  they  found  within 
their  ranks  disgruntled  Whigs,  Free  Soilers,  and  unionist  Demo- 
crats whose  sole  bond  of  connection  was  the  common  opposition  to 
Secession.  Under  these  circumstances,  the  Republican  party 
was  at  the  beginning  a  somewhat  heterogeneous  group.  In  1864 
it  made  its  appeal  to  all  who  believed  in  "the  unconditional  maiii- 
tenance  of  the  Union,  the  supremacy  of  the  Constitution,  and 
the  complete  suppression  of  the  existing  rebellion  with  the  cause 
thereof  by  vigorous  war  and  all  apt  and  efficient  means."  During 
that  campaign,  it  assumed  the  name  of  "Unionist,"  and  notwith- 
standing its  appeal  to  many  different  elements,  Lincoln  only 
polled  some  400,000  votes  more  than  the  Democratic  candidate 
McClellan,  not  counting  the  soldiers'  votes,  which  were  of  course 
largely  for  the  Unionist  candidate.^     Even  in  the  campaign  of 

^  See  article  by  Professor  J.  R.  Commons,  Political  Science  Quarterly, 
September,  1909,  on  Horace  Greeley  and  the  Republican  party. 

^  For  the  RepubHcan  platform  of  i860,  see  Readings,  p.  97. 

^  The  actual  figures  are:  Lincoln  2,213,655,  McClellan  1,802,237,  without 
the  soldiers'  vote. 


Political  Issues  in  the  United  States  117 

1868,  the  party  used  the  title  "Republican-Union,"  and  it  was 
not  until  the  next  presidential  election,  in  1872,  that  the  original 
title,   "Republican,"  was  definitely  assumed.^ 

The  Republican  party  emerged  from  the  period  of  Reconstruc- 
tion, during  which  the  southern  states  were  restored  to  their 
former  position  in  the  Union,  as  a  reorganized  party  fortified  by 
the  devotion  of  an  intense  patriotism,"  and  by  the  economic  sup- 
port of  the  manufacturing  interests  which  had  flourished  under 
the  war  tariffs  and  of  the  capitaHsts  anxious  to  swing  forward 
with  the  development  of  railways  and  new  enterprises.^  In 
possession  of  all  of  the  important  offices,  controlling  the  federal 
legislature,  executive,  and  judiciary,  with  the  Democratic  party 
prostrate  and  identified  with  treason,  the  Republicans  had  a  con- 
trol over  the  destinies  of  the  country  only  equalled  by  that  of  the 
Democratic  party  during  the  period  preceding  the  Civil  War. 
>  Wherever  there  is  such  tremendous  power,  vigilant  self-seekers 
oi  every  kind  are  sure  to  congregate,  and  during  the  years  which 
followed  the  war,  the  ranks  of  *  the  RepubHcan  party  were  per- 
meated with  mercenaries  of  every  type  —  the  spoilsmen  hunt- 
ing offices,  railway  promoters  seeking  land  grants  and  financial 
aid  from  the  government,  manufacturers  demanding  more  dis- 
crimination in  the  tariff  legislation,  and  the  great  army  of  hangers- 
on  who  attached  themselves  to  these  leaders.  The  integrity  of 
the  party  was  further  injured  by  the  "carpet-baggers"  in  the 
South,  who,  in  the  name  of  the  federal  government  and  the  Re- 
publican party,  plundered  the  southern  states  and  heaped  upon 
them  an  enormous  burden  of  debt. 

Thus,  those  who  plundered  under  the  guise  of  patriotism  helped 
to  discredit  sadly  the  great  party  which  made  the  proud  boast 
that  it  had  preserved  the  Union  and  abolished  slavery.  Under 
these  circumstances  the  Democratic  party  began  to  be  rehabili- 
tated.    It  had  had  a  long  and  triumphant  history  prior  to  the 

^  The  reconstruction  of  the  Republican  party  during  the  Civil  War  is  the 
subject  of  a  very  convincing  paper  read  by  Professor  Dunning  before  the 
American  Historical  Association  in  1909,  as  yet  unpublished.  I  am  indebted 
to  Professor  Dunning  for  the  privilege  of  reading  it  in  manuscript. 

'  See  the  patriotic  appeal  in  the  Republican  platform  of  1876,  Readings, 

p.  lOI. 

^  For  a  first-hand  study  of  the  economic  aspects  of  the  period,  see  Dunning, 
Reconstruction,  Political  and  Economic  (American  Nation  Series). 


ii8  American  Government  and  Politics 

Civil  War;  it  had  great  traditions,  and  numbered  on  its  roll  some 
of  the  most  distinguished  men  in  the  American  history;  and, 
furthermore,  it  must  be  remembered  that  in  the  election  of  i860, 
when  it  went  down  in  defeat,  it  had  the  support,  if  we  combine 
both  factions,  of  an  overwhelming  majority  of  the  people  of  the 
United  States.  It  is  not  surprising,  therefore,  that  this  party 
began  to  close  up  its  shattered  ranks  in  opposition  to  Republican 
rule.  In  the  South  the  whites  began  to  recover  their  old  pre- 
dominance; in  the  North  and  West  the  farmers  began  to  protest 
against  the  high  protective  tariffs;  here  and  there  throughout 
the  Union  discontent  with  the  railway  and  corporation  policy  of 
the  Republican  party  began  to  appear;  and  the  spoils  system 
stirred  to  action  a  small  but  vigorous  minority  of  "civil  service 
reformers."^ 

As  a  result,  the  Democratic  party,  in  1884,  was  able  to  bring 
together  an  effective  opposition  and  Mr.  Cleveland  was  narrowly 
elected,  principally  by  the  support  of  the  "mugwumps,"  who 
bolted  the  RepubUcans  after  the  flomination  of  Mr.  Blaine  at  the 
Chicago  convention.  This  Democratic  triumph  was  short-lived, 
however,  for  four  years  later,  when  Mr.  Cleveland  forced  the 
tariff  issue  by  his  celebrated  message  of  1887,  the  Republicans 
were  able  to  elect  Benjamin  Harrison  by  a  slight  majority.  Tak- 
ing advantage  of  their  victory,  the  Republicans  forced  through 
the  McKinley  tariff  bill,  which  was  regarded  by  many  members 
of  the  party  as  entirely  too  drastic,  and  in  the  succeeding  election 
of  1892  Mr.  Cleveland  was  again  able  to  lead  his  party  to  victory. 

The  Economic  Revolution  since  the  Civil  War 

At  this  time,  however,  American  politics  may  be  said  to  have 
entered  upon  a  new  phase.  Since  the  Civil  War  there  has  been 
an  economic  transformation  more  revolutionary  in  character  than 
that  which  formed  the  basis  of  the  political  upheaval  of  Andrew 
Jackson's  time.  Small  business  concerns  have  grown  to  gigantic 
corporations  capitalized  at  untold  millions  and  controlling  na- 
tion-wide industries.  There  have  been  built  up  colossal  fortunes 
from  which  the  total  national  debt  of  Washington's  day  could  be 
paid  many  times  over.  The  western  lands,  once  the  hope  of  the 
poor  man  of  the  East,  have  been  practically  all  taken  up.    The 

^  For  the  spirit  of  the  Democratic  opposition,  see  Readings,  p.  103. 


Political  Issues  in  the  United  States  119 

vast  timber  and  mineral  resources  of  the  nation  have  passed 
largely. into  private  hands.  Cities  have  grown  by  leaps  and 
bounds,  and  miUions  of  poor  are  crowded  in  our  industrial  centres. 
The  village  workshop,  the  old-fashioned  woollen  mill  by  the 
brookside,  the  handloom,  the  short  railway  Hne,  the  small  in- 
dividuahst  factory,  have  been  conquered  by  mighty  captains  of 
industry,  whose  bold  enterprises  and  remarkable  genius  for  world- 
wide organizations  are  the  wonder  of  our  age.  With  this  indus- 
trial revolution  has  come  a  working-class.  It  may  be  demon- 
strable that  there  are  many  gradations  of  fortune  in  modern  life 
and  that  members  of  the  working-class  are  constantly  passing  to 
other  ranks,  but  this  should  not  be  allowed  to  obscure  the  fact 
that  a  permanent  working-class,  dependent  almost  entirely  upon 
the  sale  of  labor  power,  is  the  inevitable  concomitant  of  the  in- 
dustrial revolution.  In  connection  with  our  commercial  enter- 
prises the  insular  dependencies  have  been  acquired,  and  the  fed- 
eral government  drawn  into  the  mesh  of  world  politics.  Surely 
the  United  States  of  our  time  is  further  away  from  Lincoln's  day 
than  his  America  was  from  the  America  of  Washington. 

The  Minor  Parties 

The  new  conditions  of  American  life  have  created  new  groups 
of  interests,  and  have,  therefore,  forced  steadily  to  the  front  new 
types  of  political  doctrines.  These  groups  of  doctrines,  so  far  as 
they  propose  radical  changes,  usually  find  their  first  exponents  in 
minor  parties;  and  as  the  respective  issues  come  within  the  range 
of  practical  politics,  they  are  presented  to  the  country  in  the  na- 
tional campaigns  of  the  two  great  parties.  Accordingly  it  seems 
worth  while  to  review  briefly  the  minor  parties  since  the  Civil 
War,  for,  in  spite  of  their  apparent  insignificance,  they  are  by  no 
means  negligible  factors  in  the  American  governing  process. 
These  parties  fall  readily  into  three  groups:  the  temperance,  the 
labor,  and  the  agrarian  parties. 

I.  About  the  middle  of  the  nineteenth  century  there  arose  a 
temperance  movement  which  carried  several  states  for  absolute 
prohibition.  A  reaction,  however,  speedily  set  in,  and  the  tem- 
perance question  was  overshadowed  by  the  great  slavery  issue. 
It  was  not  until  after  the  Civil  War  that  the  Prohibitionists  en- 
tered national  politics.     They  held  their  first  national  conven- 


120  American  Government  and  Politics 

tion  at  Columbus,  Ohio,  on  February  22,  1872,  and  nominated 
Mr.  Black  of  Pennsylvania  as  their  presidential  candidate.  In 
their  platform  they  declared  that  the  prohibition  of  the  liquor 
traffic  was  the  leading  issue,  but  they  also  proposed  certain  cur- 
rency reforms  and  the  regulation  of  transportation  and  monop- 
olies.^ Indeed,  from  the  very  inception  of  the  party,  the  Pro- 
hibitionists have  been  unable  to  ignore  the  other  questions  of  the 
day;  andirom  time  to  time  they  have  declared  in  favor  of  various 
economic  reforms  as  well  as  the  prohibition  of  the  Hquor  traffic. 
Nevertheless,  they  have  been  imable  to  muster  any  considerable 
strength,  for  they  polled  only  about  254,000  votes  in  1908. 

2.  Almost  immediately  after  the  Civil  War  labor  entered 
American  politics  as  a  separate  and  independent  element.  In 
1872  a  party  known  as  the  "Labor  Reformers"  held  a  national 
convention  in  Columbus,  Ohio,  which  was  attended  by  represen- 
tatives from  seventeen  different  states.  The  party  at  that  con- 
vention declared  in  favor  of  restricting  the  sale  of  public  lands  to 
bona  fide  homeseekers,  Chinese  exclusion,  an  eight-hour  day  in 
government  employments,  civil  service  reform,  one  term  for  each 
President,  regulation  of  railway  and  telegraph  rates,  and  the 
subjection  of  the  military  to  civil  authority.^  For  a  time,  the 
labor  element  seems  to  have  been  absorbed  into  the  agrarian 
groups  described  below;  but  in  1888  a  ''Union  Labor"  party 
met  in  national  convention  at  Cincinnati,  and  drafted  a  plat- 
form embodying  the  principal  doctrines  of  the  Labor  Reformers 
and  demanding,  in  addition,  popular  election  of  United  States 
Senators.^ 

The  labor  forces  appeared  in  an  avowed  socialist  organization 
in  the  campaign  of  1892,  when  the  "Socialist  Labor"  party  held 
its  first  convention  in  New  York.  This  party  has  made  its  appeal 
almost  exclusively  to  the  working-class.  It  declared  in  its  plat- 
form of  1908  that  "man  cannot  exercise  his  right  of  life,  liberty, 
and  the  pursuit  of  happiness  without  the  ownership  of  the  land 
and  the  tools  with  which  to  work.  Deprived  of  these,  his  life, 
liberty,  and  fate  fall  into  the  hands  of  the  class  that  owns  these 
essentials  for  work  and  production."    The  radical  appeal  of 

^  Their  candidate  in  that  year  polled  5608  votes, 

2  The  candidate  of  the  Labor  Reformers  in  that  year  polled  about  29,000 
out  of  over  6,000,000  votes. 

3  The  candidate  of  the  Union  Labor  Party  in  1888  polled  146,935  votes. 


Political  Issues  in  the  United  States  121 

the  Socialist  Laborites  to  the  working-class  to  unite  against  the 
property-owning  class  has  met,  however,  with  no  considerable 
response;  its  candidate  in  1896  polled  only  36,373  votes,  and 
in  1908  the  number  fell  to  about  15,000. 

The  extreme  views  of  the  -Socialist  Labor  party  led  to  the 
organization  of  another  radical  group  taking  the  name  of  "So- 
cialist "  party,  which  held  its  first  convention  in  1900;  and  in  the 
last  presidential  campaign  polled  448,453  votes  —  more  than  the 
combined  vote  of  the  other  minor  parties.  This  party  also  makes 
its  appeal  especially  to  the  working-class,  but  it  is  not  so  revolu- 
tionary in  tone  as  the  older  socialist  group,  and  it  does  not  de- 
mand the  complete  abolition  of  all  private  property  in  the  means 
of  production.^  In  its  platform  of  1908  it  declared  in  favor  of 
graduated  inheritance  and  income  taxes;  universal  suffrage;  the 
initiative  and  referendum;  proportional  representation  and  the 
right  of  recall;  new  federal  departments  of  health,  education, 
and  labor;  popular  election  of  judges;  employment  of  unem- 
ployed working  men  on  large  government  undertakings;  collec- 
tive ownership  of  all  industries  in  which  competition  has  ceased 
to  exist;  extension  of  the  public  domain  to  include  mineral 
resources,  forests,  and  water  power;  compulsory  government 
insurance  for  the  working-class;  and  an  extended  labor  code 
designed  to  raise  the  standard  of  Hfe  for  the  working  people  in 
every  branch  of  industry. 

3.  There  has  been  in  American  poHtics  since  the  period  of 
the  Revolution  a  distinctly  agrarian  element,  but  it  did  not  appear 
as  a  separate  poHtical  party  until  after  the  Civil  War.  With  the 
rapid  decline  in  the  prices  of  agricultural  products  which  accom- 
panied the  general  collapse  of  the  inflated  war  prices,  the  farmers 
began  to  grow  dissatisfied  with  their  lot,  and  at  length  they 
came  to  beheve  that  the  railways,  the  corporations,  and  the 
financial  policy  of  the  federal  government  were  principally  re- 
sponsible for  the  evils  under  which  they  labored.  Working 
through  the  legislatures,  especially  in  Illinois,  Iowa,  Wisconsin, 
and  other  western  states,  they  attempted  to  secure  relief  by  pass- 
ing a  number  of  laws  regulating  railway  rates  and  the  conditions 
of  warehousing  and  transporting  grain. 

^  It  declared  in  its  platform  of  1908  "that  occupancy  and  use  of  land  be 
the  sole  title  to  possession." 


122  American  Government  and  Politics 

The  discontented  farmers  entered  politics  in  1876  as  the  Inde- 
pendent National  or  "Greenback"^  party,  and  waged  warfare 
especially  on  the  Repubhcans,  charging  them  with  being  re- 
sponsible for  the  decUne  in  prices  because  they  had  placed  the 
monetary  system  on  a  gold  basis  and  contracted  the  currency.  In 
spite  of  the  small  vote  polled  by  their  candidate,  Peter  Cooper,  of 
New  York,  the  Greenbackers  put  forward  a  candidate  in  the 
next  campaign,  and  even  made  a  third  attempt  in  1884.  In  view 
of  later  developments,  their  platform  of  1880  is  interesting,  for  it 
included,  among  other  things,  free  coinage  of  silver,  advanced 
labor  legislation,  the  establishment  of  a  national  bureau  of  labor, 
Chinese  exclusion,  a  graduated  income  tax,  and  the  regulation  of 
interstate  commerce. 

Although  it  gained  in  votes  at  first,  —  from  81,737  in  1876 
to  308,578  in  1880,  — the  Greenback  party  went  to  pieces  com- 
pletely after  the  campaign  of  1884.  Within  a  short  time, 
however,  the  discontented  agrarians  formed  a  new  association, 
known  as  the  Farmers'  AlHance,  whidi,  although  it  did  not  ofii- 
cially  enter  politics,  was  the  precursor  of  the  PopuHst  party. 
This  party  drew  together,  in  1892,  both  agrarian  and  labor  ele- 
ments in  a  national  convention,  which  met  at  Omaha  and  put 
forth  a  radical  program,  demanding  government  ownership  of 
railways,  telegraph  and  telephones,  a  graduated  income  tax, 
postal  savings  banks,  and  the  free  coinage  of  silver  and  gold  at 
the  legal  ratio  of  16  to  i. 

On  this  radical  platform  the  Populists  went  into  the  cam- 
paign of  1892,  with  James  B.  Weaver  as  presidential  candidate, 
and  polled  more  than  a  million  votes,  principally  in  the  western 
and  southern  states,  carrying  Colorado,  Idaho,  Kansas,  Nevada, 
and  securing  one  electoral  vote  in  North  Dakota  and  another  in 
Oregon.  This  unprecedented  achievement  by  a  minority  party 
was  partially  due  to  fusion  with  the  Democrats  in  some  of  the 
states,  but  beyond  question  the  Populists  had  attained  a  numer- 
ical strength  which  made  them  a  force  to  be  reckoned  with  in 
American  politics.^ 

^  So-called  on  account  of  its  advocacy  of  paper  money. 

2  The  Populist  party,  after  its  capture  of  the  Democratic  party  in  1896, 
continued  to  maintain  a  separate  organization,  but  it  has  steadily  declined, 
its  candidate  in  1908  polling  only  about  30,000  votes. 


Political  Issues  in  the  United  States  123 


The  New  Era  in  American  Politics 

This  became  apparent  in  the  great  free  silver  contest  of  1896, 
when  the  Democratic  party  was  captured  by  the  Populist  wing, 
and  waged  a  campaign  on  a  platform  based  largely  upon  Populist 
principles.  In  that  year  the  sectional  issues  of  the  Civil  War 
were  cast  aside,  and  the  new  issues  arising  out  of  the  industrial 
revolution,  the  growth  of  trusts,  and  the  development  of  organ- 
ized labor  were  forced  to  the  front.  The  particular  plan  of  reform 
—  the  free  coinage  of  silver  —  with  which  Mr.  Bryan  waged  his 
memorable  campaign  was  permanently  rejected,  but  the  spirit 
wliich  he  aroused  affected  all  other  parties,  for  he  announced  in 
no  uncertain  tones  that  an  economic  revolution  had  taken  place 
since  the  Civil  War,  and  he  voiced  the  slowly  awakening  con- 
sciousness of  the  broad  mass  of  the  people  to  the  fact  that  the 
great  corporate  and  financial  interests  would  have  to  be  checked 
and  controlled  in  some  way.^ 

Mr.  Bryan  was  not  destined  to  carry  into  effect  the  policies 
which  he  advocated  with  such  eloquence  and  zeal,  and  it  would  be 
misreading  the  history  of  our  time  to  attribute  the  political  revo- 
lution of  the  last  decade  to  his  personal  influence.  The  times 
have  changed  and  new  issues  have  come  with  them.  This  is 
evident  in  the  platforms  put  forth  by  the  two  great  parties  in 
1908,  and  in  the  policies  advocated  by  presidential  candidates 
during  the  campaign.^ 

The  Democratic  and  Repubhcan  platforms,  in  that  year,  were 
in  accord  on  a  number  of  points,  such  as  the  admission  of  Arizona 
and  New  Mexico  as  separate  states,  liberal  pensions,  the  encour- 
agement of  the  national  marine  (for  which  purpose,  however,  the 
Democrats  would  not  impose  "new  or  additional  burdens  on  the 
people"  or  give  "government  bounties"),  the  creation  of  national 
public-health  agencies,  the  conservation  of  natural  resources 
and  the  establishment  of  postal  savings  banks  (which  the  Demo- 
crats favored  if  a  guarantee  of  bank-deposits  could  not  be  se- 
cured). Both  parties  agreed  that  the  tariff  should  receive  an 
early  revision,  but  the  Democrats  were  more  specific,  favoring 

*  For  Mr.  Bryan's  appeal  in  his  famous  "crown  of  thorns"  speech,  see 
Readings,  p.  105. 

^  For  the  Republican  platform  of  1908,  see  Readings,  p.  107. 


124  American  Government  and  Politics 

the  removal  of  duties  on  trust-controlled  products  and  the  resto- 
ration of  the  tariff  to  a  revenue  basis. 

On  the  subject  of  railway  regulation,  the  Republicans  advo- 
cated such  an  amendment  of  the  law  as  would  give  the  railroads 
the  right  to  make  and  publish  trafl&c  agreements  subject  to  the 
approval  of  the  Interstate  Commerce  Commission,  provided  the 
principle  of  competition  was  maintained,  and  they  called  for 
national  legislation  to  prevent  stock-watering.  The  Democratic 
platform  was  more  explicit,  demanding  that  a  physical  valuation  of 
railway  property  be  made,  that  railways  should  be  prevented  from 
entering  into  competition  with  their  shippers,  and  that  the 
Interstate  Commerce  Commission  should  be  empowered  to  take 
the  initiative  in  rate  regulation,  to  inspect  proposed  schedules, 
and  to  readjust  unreasonable  rates. 

The  anti-trust  plank  of  the  Republican  party  proposed  to  give 
the  federal  government  more  extensive  supervision  and  control 
over  interstate  corporations  having  the  power  and  opportunity 
to  establish  monopolies;  the  Democratic  platform  demanded  the 
destruction  of  all  private  monopoly,  and  recommended,  as  specific 
measures,  laws  preventing  duplication  of  directors  among  com- 
peting corporations,  establishing  a  federal  license  system  and 
compelling  licensed  companies  to  sell  their  commodities  at  the 
same  price  throughout  the  country,  subject  to  variations  owing 
to  cost  of  transportation. 

On  the  vexed  question  of  injunctions,  the  Democrats  reiterated 
their  pledges  of  1896  and  1904,  providing  for  jury  trial  in  cases  of 
indirect  contempt;  and  stated  that  "injunctions  should  not  be 
issued  in  any  cases  in  which  injunctions  would  not  issue  if  no 
labor  dispute  were  involved."  The  Republicans,  while  insisting 
on  preserving  the  integrity  of  the  judiciary,  declared  that  "the 
rules  of  procedure  in  the  federal  courts  with  respect  to  the  issue 
of  the  writ  of  injunction  should  be  more  accurately  defined  by 
statute,  and  that  no  injunction  or  temporary  restraining  order 
should  be  issued  without  notice,  except  where  irreparable  injury 
would  result  from  delay,  in  which  case  a  speedy  hearing  there- 
after should  be  granted." 

The  Democrats  condemned  imperialism  as  a  blunder,  and 
favored  an  immediate  declaration  of  the  nation's  purpose  to  give 
the  Philippines  independence  as  soon  as  stable  government  could 
be  established,  subject  to  arrangements  similar  to  those  with 


Political  Issues  in  the  United  States  125 

Cuba.  According  to  the  Republicans,  the  policies  of  McKinley 
and  Roosevelt  were  leading  the  inhabitants  of  the  islands,  step 
by  step,  to  an  ever-increasing  measure  of  home  rule. 

As  to  labor  questions,  the  RepubUcans  pointed  to  their  record ; 
and  the  Democrats  promised  to  create  a  department  of  labor  and 
to  free  unions  from  the  restrictions  on  combinations  in  restraint 
of  trade. 

The  Democratic  platform  in  addition  called  for  the  popular 
election  of  Senators,  an  income  tax,  regulation  of  telegraphs  and 
telephone  rates  for  interstate  business,  publicity  of  campaign 
funds,  and  legislation  creating  a  national  bank  guarantee  fund, 
securing  depositors  in  national  banks. 

In  his  acceptance  speech,  Mr.  Taft  approved  the  physical 
valuation  of  railways,  seemed  to  favor  the  exemption  of  trade 
imions  from  the  anti-trust  law,  endorsed  the  popular  election  of 
Senators,  and  stated  that  in  his  opinion  an  income  tax  could  be 
passed  which  would  not  conflict  with  the  Constitution  as  inter- 
preted by  the  Supreme  Court.  ^ 

^  A  new  party  bearing  the  name  of  the  Independence  party,  formed  under 
the  auspices  of  Mr.  Hearst  in  New  York,  favored  anti-injunction  legislation, 
the  exemption  of  labor  unions  from  the  operation  of  anti-trust  laws,  govern- 
ment ownership  of  public  utilities,  and  otJier  radical  innovations. 


CHAPTER  VII 

THE  DEVELOPMENT  OF  PARTY  MACHINERY 

The  process  by  which  pohtical  parties  have  built  up  their 
organizations  from  the  primary  to  the  national  committee  and 
extended  their  sway  throughout  the  United  States  and  its  depen- 
dencies forms  one  of  the  most  interesting  studies  in  all  the  history 
of  political  institutions.  Originating  in  a  variety  of  voluntary 
practices,  party  machinery  became  more  definite  and  more  com- 
»|plete  from  generation  to  generation,  until  at  length  it  became  a 
I  veritable  government  without  and  within  the  legal  government 
f — with  its  own  army  of  officials,  its  congresses  or  conventions, 
its  rules  and  customs,  and  its  methods  for  maintaining  discipline 
in  the  ranks.  Its  enormous  power  was  early  recognized;'  but 
for  a  long  time  it  was  regarded  as  a  purely  private  association 
in  spite  of  its  eminently  public  character;  and  accordingly  it 
escaped  all  governmental  control.  It  was  not  until  the  abuses 
of  the  parties  became  so  notorious  as  to  threaten  the  integrity 
of  the  commonwealth,  that  the  policy  of  regulating  them  by 
statute  was  adopted.  This  poHcy,  once  accepted,  has  been 
steadily  advanced,  however,  until  in  many  states  the  political 
party  has  been  frankly  recognized  by  law  and  openly  made  a 
piece  of  the  regular  mechanism  of  government.^ 

Party  machinery  is  not  a  fortuitous  development,  but  is 
the  direct  result  of  the  requirements  of  practical  politics.  The 
necessity  of  nominating  candidates  for  offices  leads  inevitably 
to  the  development  of  caucuses  and  conventions.  In  the  con- 
duct of  campaigns,  leadership  and  discipline  are  indispensable, 
and  hence  we  have  concentration  of  power  in  the  hands  of  party 
directors,  and  the  organization  of  an  army  of  party  workers. 
When  a  party  is  in  power,  it  fills  offices,  makes  and  enforces  laws, 
grants  franchises,  and  in  a  multitude  of  ways  regulates  private 
interests;    and  out  of  these  functions  come  emoluments,  cam- 

^  See  Readings,  p.  131. 
126 


The  Development  of  Party  Machinery  127 

paign  funds,  and  enormous  power  over  the  lives  of  men.  It  is 
small  wonder,  therefore,  where  there  are  so  many  offices  to  be 
filled  and  so  many  advantages  to  be  derived  that  our  political 
parties  have  reached  a  high  degree  of  organization  and  control. 

Early  Nominating  Methods 

The  beginnings  of  this  great  system  may  be  traced  back  into 
the  colonial  period,  for  it  appears  that  even  the  Boston  town 
meeting,  so  celebrated  for  its  democratic  character,  had  fallen  into 
the  hands  of  the  caucus  long  before  the  Declaration  of  Indepen- 
dence.^ After  the  organization  of  the  independent  governments, 
there  was  naturally  an  increase  in  the  number  of  elective  offices,^ 
and,  while  in  many  instances  candidates  were  brought  before 
the  public  through  personal  negotiations  or  by  the  advocacy  of 
a  few  friends,  it  was  not  long  before  more  or  less  regular  assem- 
blies for  the  purpose  of  making  nominations  appeared  everywhere 
throughout  the  states.  For  local  and  county  nominations  a 
general  mass  meeting  composed  of  interested  parties  seems  to 
have  been  the  early  method  employed,  but  the  controversies 
which  arose  in  these  assemblies  led  to  a  demand  for  regularity 
in  ■  composition,  so  that  nominating  conventions  of  official 
delegates  soon  began  to  appear  alongside  the  mass  meetings. 
For  example,  candidates  for  Congress  and  the  state  legislature 
in  the  county  of  Philadelphia  were  nominated  in  1794  "at  a 
large  and  respectablemeetingof  thejree^^  but  five  years  later, 
in  1799,  we  hear  oi  a  county  convention  in  that  city  made  up 
of  three  delegates  from  each  ward.  By  the  close  of  the  eighteenth 
century,  county  conventions,  composed  of  delegates  represent- 
ing lower  units  of  government,  seem  to  have  been  fairly  well 
developed  in  Pennsylvania.^  About  the  same  time  congressional 
and  county  conventions  seem  to  have  been  regularly  established 
in  Massachusetts  and  in  all  other  states  where  party  contests 
had  reached  any  degree  of  sharpness. 

Thestateconvention  as  a  regular  institution  was  a  develop- 
ment of  a  later  period.     It  is  true  that  we  hear  of  a  state  con- 

'  For  John  Adams'  interesting  account  of  the  Boston  caucus,  see  Readings, 
p.  12,  note  I. 

^  See  above,  p.  89. 

'  Dallinger,  Nominations  for  Elective  Offices  in  the  United  States,  pp.  21-23. 


128  American  Government  and  Politics 

vention  in  Pennsylvania  as  early  as  1788,  but  it  seems  to  have 
•disappeared  before  a  device  known  as  the  legislative  caucus. 
Owing  to  the  difficulties  of  communication  and  the  small  number 
of  elective  state  offices,  the  expedient  of  nominating  state  tickets 
by  the  convention  method  did  not  appear  attractive  to  the 
politicians.  For  a  time,  therefore,  nominations  were  made  in  a 
variety  of  fashions.  For  example.  Judge  Yates  was  nominated 
by  the  FederaUsts  as  a  candidate  for  governor  of  New  York,  in 
1789, by  "a,  party  meeting"  held  in  New  York  City,  at  which 
Alexander  Hamilton  and  several  other  persons  were  appointed 
a  committee  of  correspondence  to  promote  the  election  of  their 
nominee.  In  1792,  George  Clinton  was  nominated  governor  of 
that  state  at  a  Republican  meeting  held  in  New  York  City,  said 
to  have  been  composed  of  "gentlemen  from  various  parts  of  the 
state." 
"X  The  Legislative  Caucus 

It  was  not  long,  however,  before  the  power  of  making  state 
nominations  was  assumed  by  the  members  of  each  party  in  the 
state  legislature,  who  organized  themselves  into  an  assembly 
known  as  the  legislative  caucus.^  It  was  the  practice  for  this 
t  caucus  to  meet  officially,  usually  in  the  capitol  building,  select 
the  candidates,  and  issue  a  signed  proclamation  or  appeal  for 
support.  In  conducting  the  campaign,  the  legislative  caucus 
organized  correspondence  committees  throughout  the  state. 
Although  this  newer  device  was  more  representative  than  the 
older  irregular  mass  meetings  which  it  supplanted,  it  was,  of 
course,  not  so  completely  representative  as  the  later  state  con- 
vention. For  instance,  if  a  county  had  no  Federalist  member  in 
the  state  legislature,  it  would  have  no  weight  in  the  selection  of 
the  state  candidates,  although  it  might  contain"^  a  number  of 
Federalist  voters.  The  injustice  of  this  arrangement  was  recog- 
nized in  New  York  as  early  as  181 7,  when  the  Democratic  legis- 
lative caucus  was  reenforced  by  representatives  of  the  Demo- 
cratic voters  from  those  counties  which  had  Federalist  members 
in  the  state  assembly.^ 

In  1800  the  legislative  caucus  was  transferred  to  Congress  as 
a  mode  of  making  nominations  for  President  and  Vice-President. 

^  For  a  description  of  a  legislative  caucus,  see  Readings,  p.  112. 
^  Ibid.,  p.  112. 


The  Development  of  Party  Machinery         129 

It  appears  that  early  in  the  year  1800  a  few  Federalist  members  of 
Congress  met  in  the  Senate  chamber  for  the  purpose  of  coming  to 
sotaie  decision  with  regard  to  the  pending  presidential  election. 
Owing  to  the  secrecy  which  shrouded  this  meeting,  there  is  con- 
siderable uncertainty  as  to  its  real,  purpose.  It  is  contended  by 
some  that  Mr.  Hamilton  desired  to  use  it  to  thwart  Mr.  Adams; 
and  by  others,  that  it  was  convened  with  a  view  to  lending  sup- 
port to  the  candidacy  of  Mr.  Adams,  At  all  events  it  was  roundly 
denounced  by  the  Republicans  as  an  attempt  to  coerce  the  voters; 
but  it  proved  such  an  admirable  device  that  the  Republicans  held 
one  of  their  own  for  the  purpose  of  selecting  a  nominee  for  Vice- 
President,  the  candidacy  of  Jefferson  for  the  presidency  being  con- 
ceded. From  this  time  forward  the  congressional  caucus  was 
regularly  used  in  making  presidential  nominations  until  it  was 
overthrown  by  the  adoption  of  the  convention  system. 

It  was  soon  recognized  that  the  method  of  nomination  by  the 
congressional  caucus  had  made  a  revolution  in  the  system  set 
up  by  the  f ramers  of  the  federal  Constitution,  according  to  which 
the  presidential  electors  were  supposed  to  be  free  to  vote  as  they 
pleased.  Clearly  the  real  power  of  selecting  the  President  had 
passed  from  the  hands  of  the  electors  to  an  extra-legal  bodv. 
"The  members  of  the  two  Houses  of  Congress,"  said  Mr.  Gaston, 
in  a  speech  delivered  in  the  House  of  Representatives  in  18 14, 
"meet  in  caucus  or  a  convention  and  there  ballot  for  a  President 
or  Vice-President  of  the  United  States.  The  result  of  their 
election  is  published,  through  the  Union  in  the  name  of  a  recom- 
mendation. This  modest  recommendation  then  comes  before 
the  members  of  the  respective  state  legislatures.  Where  the 
appointment  ultimately  rests  with  them,  no  trouble  whatever  is 
given  to  the  people.  .  .  .  Where  in  form,  however,  the  choice  of 
electors  remains  with  the  people,  the  patriotic  members  of  the 
state  legislatures,  vieing  with  their  patriotic  predecessors,  back 
this  draft  on  popular  credulity  with  the  weight  of  their  endorse- 
ment. Not  content  with  this  they  .  .  .  make  out  a  ticket  of 
electors  and  thus  designate  the  individuals  who  in  their  behalf 
are  to  honor  this  demand  of  their  suffrages.  This  whole  proceed- 
ing appears  to  be  monstrous;  it  must  be  corrected  or  the  char- 
acter of  this  government  is  fundamentally  changed.  Already, 
in  fact,  the  chief  magistrate  of  the  United  States  owes  his  office 
principally  to  aristocratic  intrigue,  cabal,  and  management." 

K 


130  American  Government  and  Politics 

It  was  not,  however,  by  constitutional  amendment,  as  many 
members  of  Congress  proposed,  that  the  caucus  method  of  mak- 
ing nominations  was  to  be  destroyed;  it  met  its  doom  at  the 
hands  of  the  national  convention  organized  by  a  popular  uprising 
against  the  domination  of  the  poUtical  leaders  in  Congress. 

The  Rise   of  the  Nominating  Convention 

This  uprising  came  with  the  democratic  movement  that  carried 
Jackson  into  the  presidential  office.^  The  last  congressional 
caucus  was  held  in  1824,  when  a  few  friends  of  William  H.  Craw- 
ford gathered  in  the  chamber  of  the  House  of  Representatives 
and  selected  him  as  their  candidate  for  the  presidency.^  The 
subsequent  election  showed  that  Jackson  was  by  far  the  most 
popular  candidate,  although  his  support  in  Congress  was  almost 
negligible.  Jackson's  friends,  therefore,  turned  fiercely  upon 
the  caucus.  The  legislature  of  Jackson's  state,  Tennessee,  had 
already  sharply  denounced  it,^  and  several  other  states  followed 
this  example.  In  the  presidential  election  of  1828,  no  attempt 
was  made  to  hold  a  congressional  caucus.  Jackson  was  nomi- 
nated by  "spontaneous"  legislative  caucuses  and  conventions 
held  by  his  followers  in  the  various  states,  and  thus,  to  use  a 
phrase  then  current,  "King  Caucus  met  his  death." 
j  About  the  same  time,  the  legislative  caucus  was  being  aban- 
■doned  as  a  machine  for  nominating  state  candidates.  It  appears 
that  the  state  convention  was  revived  in  Pennsylvania  as  early 
as  181 2,  but  it  was  not  until  1823  that  the  last  vestige  of  the 
older  caucus  system  was  swept  away  by  the  definite  establish- 
ment of  the  convention  composed  of  delegates  supposed  to  have 
been  regularly  chosen.^  In  Rhode  Island  the  mixed  legislative 
caucus  disappeared  by  1825,  and  regular  conventions,  composed 
of  delegates  from  all  the  towns  in  the  state,  were  fully  established 
in  popular  favor.^  In  New  York,  the  nomination  of  Mr.  Craw- 
ford for  President  by  the  congressional  caucus  at  Washington 


^  See  above,  p.  108. 

^  For  the  minutes  of  this  caucus,  see  Readings,  p.  114. 
^  See  Readings,  p.  117,  for  this  denunciation. 

*  J.  S.  Walton,  "Nominating  Conventions  in  Pennsylvania,"    American 
Historical  Review,  Vol.  II,  pp.  262-278. 

^  Proceedings  of  the  Rhode  Islatid  Historical  Society,  Vol.  I,  pp.  258-269. 


The  Development  of  Party  Machinery         131 

resulted  in  the  call  of  a  Jackson  conference  which  resolved  that 
a  state  convention,  composed  of  the  same  number  of  delegates 
as  the  lower  house  of  the  state  legislature,  should  be  chosen  by 
the  voters  opposed  to  Mr.  Crawford  and  in  favor  of  "restoring  to 
the  people"  the  choice  of  presidential  electors.  This  convention 
assembled  at  Utica  in  August,  1824,  and  thus  began  the  regular 
convention  system  in  ^e  state  ot  New  York.  In  general,  the 
legislative  caucus  had  been  most  violently  opposed  by  the  dis- 
gruntled politicians,  who  had  failed  to  carry  their  plans  in  it,  and 
they  eagerly  welcomed  the  convention  system  as  a  method  of 
ousting  the  older  machine. 

The  state  convention,  composed  of  delegates  selected  by  party  I 
voters,  afforded  a  splendid  model  for  a  national  convention;  and| 
in  1 83 1  this  piece  of  state  pohtical  machinery  was  brought  into 
use  for  national  purposes.  About  this  time,  there  had  sprung  up 
a  violent  opposition  to  secret  societies,  especially  to  the  Masonic 
fraternity,  on  account  of  the  mysterious  disappearance  of  a  man 
who  had  proposed  to  reveal  Masonic  secrets.  It  was  contended 
that  Free-Masonry  was  a  political  danger;  and  at  a  preliminary 
assembly  of  Anti-Masonic  delegates  at  Philadelphia  in  1830,  a 
call  was  issued  to  all  opponents  of  secret  societies  to  send  delegates 
to  a  convention  for  the  purpose  of  selecting  candidates  for  Presi- 
dent and  Vice-President.  The  following  year  the  first  national! 
convention,  composed  of  114  Anti-Masonic  delegates,  assembled! 
at  Baltimore,  and  nominated  a  ticket  which  was  sadly  defeated 
in  the  ensuing  election.  Although  the  Anti-Masonic  party 
speedily  disappeared,  it  initiated  a  rev6lution  in  our  national 
poUtical  machinery. 

The  example  thus  set  by  the  Anti-Masons  was  followed  in 
December  of  the  same  year  by  the  assemblage  of  a  convention, 
representing  the  National  Republican  or  Whig  party,  at  the 
city  of  Baltimore.  There  were  present  156  delegates,  represent- 
ing eighteen  states  and  the  District  of  Columbia.  Clay  was 
nominated  as  the  candidate  of  the  party  for  President;  a  dele- 
gation  was  sent  to  Washington  to  notify  him,  and  received  his 
acceptance;  and  an  appeal  to  the  voters,  called  "the  first  plat-*^ 
form  ever  adopted  by  a  national  convention,"  was  drawn  up. 
Furthermore,  a  campaign  committee,  composed  of  one  member 
from  each  state  selected  by  the  delegations  at  the  convention, 
was  instituted.     Although  the  nomination  of  Andrew  Jackson 


132  American  Government  and  Politics 

by  the  Democrats  to  succeed  himself  was  a  foregone  conclusion, 
a  Democratic  national  convention  was  called  for  the  purpose  of 
putting  forward  Jackson's  friend,  Van  Buren,  for  the  office 
of  Vice-President.  It  seems  that  Mr.  Lewis,  an  astute  wire- 
puller, conceived  this  device  as  a  means  of  excluding  rivals 
from  the  field;  and  it  appears  that  Amos  Kendall,  a  member  of 
Jackson's  kitchen  cabinet,  persuaded  a  Democratic  member  of 
the  New  Hampshire  legislature  to  use  his  local  legislative  caucus 
in  calling  a  national  convention.^  This  assembly  met  at  Balti- 
more in  the  spring  of  1832,  and,  as  Jackson  had  shrewdly  planned, 
nominated  Van  Buren  for  the  office  of  Vice-President. 

As  the  scheme  worked  so  excellently  in  this  instance,  Jackson 
determined  to  use  it  to  secure  the  presidency  for  Van  Buren  in 
1837.  Accordingly  he  wrote  to  a  friend  suggesting  a  national 
party  assembly  "fresh  from  the  people"  for  the  purpose  of 
nominating  candidates.  The  convention  met  in  Baltimore  in 
the  spring  of  1835,  and,  according  to  the  well-laid  plan,  nominated 
Van  Buren.  Preparatory  to  the  election  of  1840,  the  Whigs  and 
the  Democrats  held  general  party  assemblies  to  choose  their 
candidates;  and  since  that  time  all  parties  have  uniformly 
employed  the  national  convention  in  selecting  nominees  for 
President  and  Vice-President. 

It  was  many  years,  however,  before  each  party  was  so  com- 
pletely organized  down  to  the  election  district  or  precinct  as  to 
secure  regularity  in  the  choice  of  delegates.  In  the  earHer 
period  it  seems  that  delegates  to  the  national  convention  were 
sometimes  chosen  by  state  conventions,  sometimes  by  legislative 
caucuses,  and  sometimes  by  local  meetings.  Even  as  late  as 
1864  some  of  the  delegates  to  the  Republican  (or  Union)  national 
convention  were  selected  by  legislative  caucuses.  Owing  to 
this  irregularity  in  choice,  there  were  always  many  contesting 
delegates,  and,  as  there  was  no  possibiUty  of  appljdng  definite 
rules,  it  seems  that  the  majority  of  the  convention  usually  decided 
contests  by  admitting  their  own  supporters.  Occasionally,  how- 
ever, it  was  found  expedient  to  placate  both  factions,  and  conse- 
quently the  two  contending  delegations  would  be  admitted,  each 
member  being  given  one-half  a  vote. 

Once  estabHshed,  the  national  convention  and  its  accompany- 

'  For  the  opening  address  at  this  convention,  see  Readings,  p.  119. 


The  Development  of  Party  Machinery  133 

ing  political  devices  began  to  force,  steadily  and  persistently, 
the  completion  of  the  party  system  down  to  the  lowest  unit  of 
local  government  in  every  state  and  territory.     The  RepubHcan 
call  for  the  national  convention  after  the  year  1884  provided  that 
the  delegates  at  large  should  be  chosen  by  state  conventions,  and 
that  the  other  delegates  should  be  selected  by  congressional 
conventions.     The    necessity   of    deciding   between    contesting 
delegations  forced  the  national  com'mittee  and  the  convention  to 
look  into  the  rules  and  regulations  governing  the  selection  of 
delegates,  and  as  a  result,  from  year  to  year,  the  rules  of  state\ 
party  organizations  controlling  primaries  and  local  party  con-J 
ferences  became  more  and  more  precise.     Although  the  call  of^ 
the  Democratic  national  convention  left  the  selection  of  all 
delegates  to  the  determination  of  the  convention  in  each  state, 
the  result  was  the  same. 

The  national  party  organization  was  further  developed  and 
centralized  shortly  after  the  close  of  the  Civil  War  by  the  estab- 
lishment of  a  congressional  campaign  committee  at  Washington 
for  the  purpose  of  directing  congressional  elections.  The  com- 
mittee of  each  party  was  composed,  either  principally  or  entirely, 
of  members  of  Congress  selected  by  their  party  colleagues  for 
their  astuteness  in  conducting  campaigns.  This  committee  has 
always  worked  in  more  or  less  close  relations  with  the  national 
committee  and  has  been  able  to  penetrate  into  the  local  politics 
of  many  districts  more  deeply  than  the  larger  committee  has  been 
able  to  do. 

The  Forces  Working  Jor  Strong  Party  Organization 

The  pressure  for  organization  and  discipline  brought  to  bear 
upon  the  states  and  other  subdivisions  by  the  national  machine 
was  increased  very  powerfully  by  local  circumstances.  The 
keen  competition  of  parties  for  the  offices  and  their  spoils  neces- 
sitated closer  cooperation,  more  disciphne  in  the  ranks,  and 
more  efficient  leadership.  Thus  it  came  about  that  in  a  number 
of  western  and  southern  states  the  convention  system  and  its 
accompanying  organization  had  to  be  adopted,  although  they 
were  odious  to  the  more  independent  politicians.  As  Mr.  Lin- 
coln pointed  out  in  Illinois,  in  defence  of  the  adoption  of  the 
convention  by  the  Whigs,  it  was  madness  for  any  political  party 


134  American  Government  and  Politics 

constantly  to  suffer  defeat  on  account  of  dissensions  in  its  own 
ranks  which  might  be  avoided  by  a  general  agreement  in  a  party 
convention.^  The  necessity  for  state  and  local  party  organiza- 
tion was  further  emphasized  by  the  transformation  of  the  older 
appointive  ofl&ces  into  elective  offices,  and  by  that  rapid  increase 
in  the  number  of  government  officials  which  inevitably  accom- 
panied the  social  and  economic  development  of  the  common- 
wealths. 

As  the  large  number  of  elective  offices  made  it  impossible  for 
the  mass  of  the  people  to  join  in  making  nominations  and  running 
the  political  machinery,  party  business  fell  more  and  more  into 
the  hands  of  the  politicians  who  were  experts  in  the  mysteries 
and  the  manipulations  of  primaries  and  elections.  Wherever 
important  elective  offices  were  created,  machinery  for  making 
party  nominations  inevitably  followed,  with  its  long  train  of 
primaries,  caucuses,  and  conventions.  Each  new  elective 
office  only  added  to  the  weight,  complexity,  and  strength  of 
the  party  machine. 

Party  organizations  gathered  great  power  also  from  the  devel- 
opment of  railways  and  industries  within  the  states.  With  this 
economic  advance  charters,  franchises,  and  special  legislation 
were  in  great  demand,  and  the  political  party  that  controlled  a 
state  legislature  had  within  its  gift  privileges  of  almost  priceless 
value.  The  agents  of  corporations  learned  that  they  could  best 
secure  their  coveted  advantages  by  making  terms  with  the 
leaders  of  the  political  organizations,  who  would  in  turn  manipu- 
late the  primaries  and  conventions  in  such  a  way  as  to  secure 
control  of  the  necessary  instruments  of  government. 

Party  organization  in  the  South  was  greatly  strengthened  after 
the  Civil  War  by  the  strenuous  efforts  of  the  whites  to  oust  the 
Republican  "carpet-baggers,"  retire  the  negroes  from  the  polls, 
and  secure  their  ancient  dominion.  Any  respectable  white  man 
who  refused  to  cooperate  with  the  Democratic  party  in  its  deter- 
mination to  reconquer  the  position  that  had  been  lost  by  the  war 
was  regarded  as  a  traitor  to  his  community.  Thus  the  South 
became  "solid,"  and  the  government  in  each  commonwealth 
was  identified  with  the  organization  of  the  Democratic  party.^ 

*  For  this  important  document,  see  Readings,  p.  123. 
^  See  Readings,  p.  402. 


The  Development  of  Party  Machinery         135 

The  way  to  offices,  honors,  and  emoluments  was  only  open  to 
champions  of  the  ruUng  white  organization,  and  the  freedom 
of  debate  and  discussion,  which  was  so  characteristic  of  the 
South  before  the  Civil  War,  was  supplanted  by  party  discipline 
that  kept  the  ranks  in  order  against  "negro  domination." 

The  rise  of  cities  added  a  new  element  of  strength  and  com- 
plexity to  party  machinery.  As  the  great  cities  of  Boston,  New 
York,  Cincinnati,  Philadelphia,  Chicago,  and  St.  Louis  forged  to 
the  front  they  ofifered  unparalleled  opportunities  for  the  organi- 
zation and  discipline  of  party  workers.  The  election  of  the 
municipal  ofl&cers  led  to  the  establishment  of  municipal  pri- 
maries, caucuses,  conventions,  and  committees  —  wheels  within 
wheels,  the  mysteries  of  which  could  only  be  understood  by  ex- 
pert politicians  who  kept  constant  watch  on  their  operation.  It 
was  not  only  the  spoils  of  the  offices  —  their  fees,  salaries,  and 
other  emoluments  —  that  attracted  the  politicians  and  led  them 
to  organize  their  armies  of  workers.  Franchises  for  street  rail- 
way lines,  water  works,  gas  and  electric  light  plants,  telephones 
and  telegraphs,  elevated  railways,  and  subways  had  to  be  granted; 
and  whoever  possessed  the  political  power  in  the  municipality 
could  form  a  connection  with  the  private  interests  seeking  privi- 
leges, which  would  yield  revenues  undreamed  of  by  kings  of  old. 
With  the  concentration  of  population  the  number  of  saloons 
increased;  the  Uquor  interests  began  to  fight  for  licenses  and  for 
immunities  from  the  enforcement  of  the  closing  laws;  and  the 
saloons  in  every  ward  and  precinct  naturally  became  political 
centres  in  close  connection  with  the  powers  higher  up  that  were 
manipulating  the  whole  political  machine.^ 

The  Rise  and  Development  of  Tammany  Hall 

The  evolution  in  municipal  political  machinery  is  illustrated 
in  a  striking  manner  by  the  rise  and  development  of  Tammany 
Hall  in  New  York  City.  This  organization  was  established  some- 
time before  1789,  for  the  purpose  of  connecting  "in  indissoluble 
bonds  of  friendship,  brethren  of  common  attachment  to  the 
poUtical  rights  of  human  nature  and  the  liberties  of  the  country." 

*  See  Readings,  p.  505,  for  the  interesting  testimony  of  a  New  York  pk)Iice- 
captain  as  to  the  connection  established  between  the  saloons  and  the  domi- 
nant political  organization. 


136  American  Government  and  Politics 

It  seems  that  William  Mooney,  an  Irishman  of  humble  extraction, 
anxious  to  "diffuse  the  light  of  liberty,"  was  chiefly  instrumental 
in  the  organization  of  this  society.^  As  its  purposes  were  patriotic 
and  benevolent,  it  took  the  name  of  an  Indian  chief  of  William 
Penn's  time,  Tammany,  celebrated  for  his  wisdom,  peace,  diplo- 
macy, and  exemplary  life.  Tammany  had  been  canonized  as  a 
saint  by  the  Revolutionary  army  in  place  of  St.  George,  the 
slayer  of  the  dragon  and  the  patron  protector  of  the  British 
army.  In  honor  of  this  noble  red  man,  a  number  of  Tammany 
societies  had  been  established  at  various  points  throughout  the 
East.  The  New  York  organization,  therefore,  got  its  name  from 
older  societies,  and,  as  if  to  give  more  weight  to  its  American 
character,  it  took  the  name  of  Columbus  also  and  called  itself 
''the  Tammany  Society  or  the  Columbian  Order." 
J  The  early  purposes  of  the  Tammany  Society  were  social  and 
"p  patriotic  rather  than  poUtical,  and  it  seems  strange  to  say  that 
some  of  the  first  leaders  were  decidedly  anti-Catholic.  As  a 
secret  society  its  membership  was  limited;  candidates  were 
initiated  according  to  prescribed  rites;  and  officers  bearing  In- 
dian titles  were  elected.  The  Society,  hov/ever,  in  its  membership 
and  spirit  was  in  decided  contrast  to  the  more  aristocratic 
classes  of  New  York  City.  When  it  was  incorporated  in  1805, 
its  avowed  object  was  to  afford  "reUef  to  the  indigent  and  dis- 
tressed of  the  said  association,  to  widows  and  orphans,  and 
others  who  may  be  found  proper  objects  of  free  charity." 

The  Tammany  Society  seems  to  have  entered  pohtics  in  support 
of  Jefferson  during  the  hot  campaign  of  1800,  and  from  that 
time  forward  it  began  to  exercise  more  and  more  control  over 
elections  in  the  city.  The  extension  of  the  suffrage  by  the  state 
constitutional  convention  of  182 1  strengthened  its  hold  upon  the 
working-class  electors  of  the  city;  and  its  influence  was  further 
advanced  on  the  adoption  of  universal  manhood  (white)  suffrage 
by  the  constitutional  amendment  of  1826.-  A  few  years  later 
the  great  famines  in  Ireland  began  to  drive  thousands  of  Irish 
peasants  to  America.     They  were  received  with  open  arms  by 

^  The  traditional  date,  1789,  for  the  establishment  of  Tammany  Hall 
seems  to  be  wrong,  and  even  Mooney's  part  in  it  is  uncertain.  See  a  forth- 
coming study  of  Tammany  Hall  by  Mr.  Kilroe  of  New  York  City. 

^  See  above,  p.  85. 


The  Development  of  Party  Machinery         137 

the  Tammany  Society,  and  through  that  organization  many  rose 
to  positions  of  wealth  and  influence. 

As  the  population  of  the  city  and  the  membership  in  the 
Society  increased,  a  Democratic-Republican  political  organization 
was  slowly  evolved  which  was  nominally  distinct  from  the  Colum- 
bian Order.  This  poUtical  organization,  in  the  beginning,  took 
the  form  of  a  "general  meeting"  composed  of  members  of  the 
Society  and  its  political  supporters.  At  length,  about  1822,  the 
general  meeting  was  supplanted  by  a  general  committee  com- 
posed of  delegates  elected  at  ward  primaries;  and  in  due  time 
complete  control  over  the  Society  and  the  Democratic-Republican 
organization,  formed  in  connection  with  it,  passed  into  the 
hands  of  a  sub-committee  of  the  general  committee.^  For 
practical  purposes,  moreover,  the  leading  members  of  the  general 
committee  and  the  sub-committee  were  at  the  same  time  officers 
and  leading  members  in  the  Tammany  Society. 

With  the  victory  of  the  Jeffersonian  party  in  the  presidential 
election,  the  spoils  of  federal  offices  in  New  York  City  began  to 
fall  to  the  leaders  in  the  Tammany  organization.  In  1839  the 
organization  elected  its  first  mayor  of  New  York,  and  thus  the 
spoils  of  local  offices  were  added  to  the  rich  gains  made  in  federal 
elections.  The  Society  was  further  strengthened  by  the  mul- 
tipUcation  of  municipal  offices,  and  the  astounding  rise  in  local 
expenditures.  Here  were  unlimited  opportunities  for  an  astute 
leader  bent  upon  the  manipulation  of  politics  for  his  own  personal 
gain.  ^ 

This  leader  appeared  in  1863  in  the  person  of  WilHam  Marcy 
Tweed^  who,  in  that  year,  became  chairman  of  the  general  com- 
mittee of  Tammany  Hall  and  the  Grand  Sachem  of  the  Tammany 
Society.  Tweed  was  born  in  1823;  he  was  educated  at  a  public 
school,  and  entered  politics  in  his  ward  as  a  fireman  in  a  volun- 
teer company  about  1850.  He  was  shortly  elected  to  the  county 
board  of  supervisors,  which  had  large  powers  distinct  from  those 
of  the  city  authorities,  in  levying  local  taxes  and  spending  money 
for  county  buildings  and  improvements.  He  served  on  this 
board  for  a  period  of  thirteen  years,  being  four  times  elected 
its  president;  and  he  used  the  financial  power  which  it  gave  him 

'  See  below,  chap.  xxx. 

'  There  were,  however,  leaders  of  some  renown  before  Tweed's  day. 


138  American  Government  and  Politics 

to  extend  his  authority  over  the  other  branches  of  the  city  admin- 
istration. From  this  point  of  vantage  he  began  an  organization 
within  the  Tammany  Society  for  the  purpose  of  controlUng  the 
city  administration.  In  1869,  the  Tweed  group  had  possession 
of  the  mayor's  office,  the  common  council,  the  district  attorney's 
office,  the  county  and  city  treasury,  the  street  department,  the 
comptroller's  office,  the  municipal  judgeships,  the  speakership 
of  the  assembly  at  Albany,  the  state  legislature,  and  even  the 
executive  department  of  the  state. ^ 

The  pernicious  operations  of  this  group  when  in  control  of  the 
metropoHs  and  the  commonwealth  cannot  even  be  catalogued 
here.  Between  i860  and  187 1  the  debt  of  the  city  was  multi- 
plied nearly  fivefold;  a  county  courthouse  which  was  to  cost 
$250,000  really  cost  more  than  $8,000,000,  the  taxpayers  being 
charged  $470  apiece  for  chairs  and  $400,000  apiece  for  safes; 
and  under  the  specious  title  of  "general  purposes  "  enormous  sums 
of  money  were  paid  out  fraudulently  by  the  comptroller.  In 
short,  no  bounds  seem  to  have  been  set  to  the  ambitions  of  Tweed 
and  his  fellow- workers;  but  they  overreached  themselves  in 
1 87 1,  when  their  operations  were  exposed  by  the  New  York 
Times.  A  committee  of  indignant  citizens  was  formed  to  break 
up  the  ring,  and  prosecute  the  criminals.  Tweed  was  arrested 
on  the  charge  of  having  stolen  $6,000,000;  he  was  convicted, 
fined,  and  sentenced  to  twelve  years  in  prison  in  1873;  released 
on  an  order  of  the  court  of  appeals,  he  was  rearrested  and  con- 
fined in  Ludlow  Street  jail,  from  which  he  escaped  in  1875,  only 
to  be  arrested  in  Spain  and  brought  back  to  prison,  where  he  died 
shortly  afterward.  The  other  leading  members  of  the  ring  were 
likewise  made  to  feel  the  penalties  of  the  law. 

The  exposure  of  this  group  of  astute  and  unscrupulous  political 
operators  showed  to  the  American  people  for  the  first  time  the 
precise  ways  in  which  powerful  political  machines  might  be  built 
up  out  of  the  spoils  of  municipal  offices  and  municipal  privileges. 
New  York  City  has  not  been  the  only  sufferer  from  exploiting 
poUtical  organizations;  Philadelphia,  Chicago,  Cincinnati,  St. 
Louis,  San  Francisco,  and,  in  fact,  every  other  American  munici- 
pality of  any  size,  has  had  an  experience  not  differing  fundamen- 

*  For  Croker's  own  description  of  his  Tammany  organization,  see  Readings, 
P-  567- 


The  Development  of  Party  Machinery         139 

tally  in  kind,  however  much  in  degree,  from  that  which  New  York 
encountered  at  the  hands  of  Mr.  Tweed  and  his  followers. 

The  Abuses  of  Political  -Organizations 

With  the  development  of  powerful  national,  state,^  and  munic- 
ipal political  machinery  there  came  innumerable  specific  abuses. 
In  order  to  secure  pliant  tools  as  delegates  to  conventions  and 
members  of  committees,  the  political  directors  frequently  de- 
vised practices  which  excluded  the  honest  voters  from  participa- 
tion in  the  party  primaries.  They  instituted  the  "  snap  primary," 
that  is,  one  held  without  proper  notice,  or  unexpectedly,  or  at 
some  unusual  date.  They  packed  primaries  with  their  hench- 
men, who  would  drive  out  or  overwhelm  any  dangerous  oppo- 
nents.^ They  padded  the  rolls  of  party  members  with  the  names 
of  dead  men,  or  men  who  had  long  ago  left  the  community.  They 
stuffed  the  ballot  boxes  and  they  prepared  the  slates  which  were 
forced  through  the  nominating  conventions  in  the  face  of  oppo- 
sition. They  entered  into  alliance  with  railway  and  other  cor- 
porations from  whom  they  received  campaign  contributions  or 
levied  tribute  in  other  forms.^  It  was  thus  that  Jay  Gould  was 
able  to  declare,  with  a  note  of  triumph:  "I  wanted  the  legisla- 
tures of  four  states,  and  to  obtain  control  of  them,  I  made  the 
legislatures  with  my  own  money;  I  found  this  plan  a  cheaper 
one. ' '  Municipal  councils  and  state  legislatures  all  too  frequently 
granted  franchises,  special  laws,  and  innumerable  privileges  with- 
out regard  to  public  welfare  or  the  future  of  the  country,  gener- 
ally under  the  dominance  of  political  leaders  who  had  sold  out 
to  the  privilege-seekers. 

More  open,  though  by  no  means  as  dangerous,  was  the  con- 
tinual extension  of  the  spoils  system  under  which  public  offices 
were  distributed  for  party  services,  and  efficiency  in  administra- 
tion sacrificed  to  strengthen  political  machines.  In  cities,  states, 
and  at  Washington  the  spoils  system  took  possession  of  politics. 

'  For  Mr.  Wanamaker's  description  of  the  Pennsylvania  machine,  see 
Readings,  p.  128. 

^  For  an  example,  see  Readings,  p.  585. 

^  For  the  practices  of  the  Sugar  Trust,  see  Readings,  p.  572;  see  also  Ostro- 
gorski,  Democracy  and  the  Organization  of  Political  Parties,  Vol.  II,  pp.  149- 
204;  for  the  way  the  poUticians  sometimes  laid  tribute  on  railway  corpora- 
tions, see  Readings,  p.  478. 


140  American  Government  and  Politics 

Even  a  man  of  the  courage  and  integrity  of  Lincoln  was  unable 
to  resist  the  demands  of  the  spoilsmen.  A  member  of  Congress 
who  had  secured  a  local  post  mastership  for  a  henchman  de- 
manded his  removal  on  personal  grounds;  "  and  I  must  turn  him 
out,"  said  Mr.  Lincoln;  "I  do  not  want  to  but  I  must,  — there 
is  no  help  for  it."  When  a  friend  asked  Lincoln  whether  he  or 
the  congressman  was  President  of  the  United  States,  Lincoln 
quickly  replied  that  the  congressman  was  President. 

Standing  on  this  firm  economic  foundation,  —  the  spoils  of 
office  and  special  privileges,  —  the  organizations  of  the  two  great 
parties  seemed  in  a  fair  way  to  escape  from  popular  control  alto- 
gether. Men  of  great  abiHty,  who  sought  to  work  independently., 
were  promptly  shown  that  all  avenues  of  advancement  would  be 
closed  unless  they  consented  to  at  least  some  of  the  leading 
schemes  of  the  directors.  "The  party,"  says  Ostrogorski,^ 
"became  a  sort  of  church  which  admitted  no  dissent  and  piti- 
lessly excommunicated  any  one  who  deviated  a  hair's-breadth 
from  the  established  dogma  or  ritual,  were  it  even  from  a  feeling 
of  deep  piety,  from  a  yearning  for  a  more  perfect  realization  of 
the  ideal  of  holiness  set  before  the  behever."  This  spirit  of  party 
loyalty  was  reflected  in  an  editorial  of  the  Richmond  Whig  in 
1843,  on  the  "no-party  man."  "We  heartily  join,"  said  the 
editorial,  "in  desiring  the  extermination  of  this  pestiferous  and 
demorahzing  brood,  and  will  do  whatever  we  can  to  effect  it. 
.  .  .  Let  the  Whigs  and  Democrats  everywhere  resolve  that  the 
gentry  who  are  too  pure  to  associate  with  either  of  them  or  to 
belong  to  either  party,  shall  not  use  them  to  their  own  individual 
aggrandizement.  Let  them  act  upon  the  principle  that  the 
Whig  or  Democrat  who  has  sense  enough  to  form  an  opinion, 
and  honesty  enough  to  avow  it,  is  to  be  preferred  to  the  imbecile 
or  the  purist,  or  the  mercenary,  who  cannot  come  to  a  decision, 
or  is  ashamed  of  his  principles,  or  from  sordid  considerations  is 
afraid  to  declare  them."  The  party  alignment,  sharp  enough 
before  the  Civil  War,  became  even  sharper  for  a  long  time  after 
that  great  crisis,  so  that  political  independence  or  sympathy  with 
any  "third  party"  principles  came  to  be  regarded  as  a  species 
of  treason  and  intellectual  dishonesty. 

Each  of  the  two  great  party  organizations  rested  upon  the 

»  Vol.  II,  p.  92. 


The  Development  of  Party  Machinery         141 

supposedly  popular  basis  of  the  party  primaries,  in  which,  theo- 
retically, every  party  member  could  share  in  the  choice  of  can- 
didates and  the  determination  of  party  policies.  It  was  on  the 
primaries,  therefore,  that  the  standing  army  of  party  workers, 
supported  by  the  spoils  of  politics,  concentrated  their  attacks; 
they  were  always  busy;  they  knew  when  the  term  of  every 
officer  expired  and  new  nominations  must  be  made;  they  knew 
the  dates  and  places  of  primary  meetings,  and,  as  eternal  vigi- 
lance was  the  price  of  victory,  they  took  possession  of  the  field, 
leaving  the  ordinary  citizen  engaged  in  the  pursuit  of  a  liveli- 
hood in  other  than  poHtical  methods  to  grumble  at  being  dispos- 
sessed of  his  political  power. 

Attempts  to  Subject  Parties  to  Legal  Control 

Amid  the  momentous  changes  which  followed  the  Civil  War, 
—  the  rapid  growth  of  industries,  the  swift  development  of  the 
Great  West,  —  the  citizens  were  so  much  engrossed  in  private 
affairs  that  they  let  the  politicians  have  full  and  undisputed 
sway  for  almost  a  generation.  Slowly,  however,  there  came  an 
awakening  to  the  fact  that,  important  and  necessary  as  party 
organization  was  in  a  democracy,  it  might  be  perverted  from  its 
true  function  of  representing  and  carrying  into  effect  popular 
will.  Thereupon  public-spirited  men  began  a  struggle  for  legis- 
lation which  would  substitute  regular,  compulsory,  and  public 
practices  for  the  voluntary  customs  which  the  parties  had  devel- 
oped under  the  direction  of  leaders. 

The  first  attack  was  made  upon  the  ballot  and  elections.  Up 
until  about  1880  the  printing  and  distribution  of  ballots  was  left 
entirely  in  the  hands  of  the  various  political  organizations,  and, 
generally  speaking,  there  was  no  secrecy  at  all  about  elections, 
for  each  party  furnished  its  members  with  ballots  of  a  certain 
color,  and  it  was  easy  to  see  how  every  one  voted.  The  cost  of 
printing  ballots  deterred  poor  men  from  entering  politics,  and 
made  it  well-nigh  impossible  for  a  third  party,  with  no  spoils,  to 
gain  a  foothold.  In  the  early  eighties,  a  cry  went  up  from  the 
reformers  for  the  introduction  of  the  Australian  ballot  system, 
according  to  which  public  authorities  were  to  furnish  the  ballots 
for  all  parties  and  provide  complete  secrecy  for  the  voters.  The 
most  extravagant  claims  were  advanced  for  this  new  reform:  " It 


142  American  Government  and  Politics 

would  not  only  put  an  end  to  bribery  and  intimidation  of  the 
electors  and  to  frauds  in  the  taking  of  the  vote,  but  it  would  un- 
dermine the  very  foundations  of  the  Machine:  it  would  deprive 
it  of  a  pretext  for  interfering  with  elections,  for  employing  'workers, ' 
for  levying  assessments,  and  would  strip  its  candidates  of  their 
privileged  character;  the  assent  of  the  Machine  would  no  longer 
be  required  for  getting  on  the  printed  list;  the  state,  which  would 
henceforth  make  up  this  ballot,  would  enter  every  candidate  on  it 
whether  recommended  by  a  party  organization  or  not,  would 
submit  them  all  without  distinction  to  the  electors;  a  poor  man 
would  therefore  have  the  same  facilities  as  a  rich  man,  and  an 
independent  the  same  chances  as  a  party  hack  of  entering  public 
hfe.  The  promoters  of  the  reform  succeeded  in  creating  a  genu- 
ine current  of  opinion  in  its  favor;  sermons  were  preached  in  the 
churches  for  the  Australian  ballot,  numerous  petitions  were  ad- 
dressed to  the  legislatures,  and  eventually  the  reformers  ended  by 
intimidating  the  politicians  intrenched  in  those  assemblies."  * 
State  after  state  adopted  the  Australian  system,  and  assumed 
the  responsibility  of  printing  and  distributing  the  ballots  and 
safeguarding  the  secrecy  of  elections.  To-day  only  two  states, 
South  CaroHna  and  Georgia,  have  not  adopted  some  form  of 
the  Austrahan  ballot.^  It  has  failed  to  reaKze  the  high  hopes  of 
its  promoters,  but  it  has  been  of  such  undoubted  service  in  puri- 
fying elections  that  no  one  would  think  of  returning  to  the  old 
methods. 

The  failure  of  this  serious  attempt  to  abolish  party  machines 
by  merely  regulating  elections  while  leaving  the  preliminary 
nominating  work  to  the  untrammelled  control  of  party  organi- 
zations, soon  raised  a  demand  that  the  state  should  go  behind 
the  elections  and  supervise  the  primaries  of  parties,  their  com- 
mittees, conventions,  and  campaign  funds. 

Even  before  the  adoption  of  the  Australian  ballot,  California 
seems  to  have  opened  this  new  phase  in  the  evolution  of  party 
.  government  by  passing,  in  1866,  a  tentative  measure  providing 
'jjf  \  for  regularity  and  publicity  in  the  conduct  of  primaries  and 
caucuses,  but  at  the  same  time  allowing  party  committees  to 
decide  whether  the  rules  laid  down  in  the  statute  should  become 
binding  on  them.     Five  years  later,  Ohio  enacted  a  law  contain- 

*  Ostrogorski,  Vol.  II,  p.  500.  2  gee  below,  chap.  xxx. 


The  Development  of  Party  Machinery  143 

ing  similar  optional  regulations;  and  in  a  short  time  other  states 
followed  with  uncertain  and  halting  steps  the  examples  thus  af- 
forded. The  notion  of  compulsory  regulation  of  party  concerns 
was  vigorously  combated,  because  it  was  urged  that  whenever 
the  members  of  a  party  beUeved  abuses  existed  the  voluntary 
adoption  of  the  statutory  regulations  would  immediately  follow. 
Logic,  however,  was  defied  by  events,  or  rather  by  pressures  which 
were  not  apparent  to  the  logicians.  Permissive  statutes  failed 
completely  to  accomplish  the  purpose  for  which  they  were  at  first 
deemed  sufficient.  After  a  lapse  of  a  few  years,  during  which  the 
results  of  the  Australian  ballot  were  awaited,  there  began  to  come 
from  our  state  legislatures  a  series  of  compulsory  statutes,  at- 
tacking first  the  minor  features  of  party  organization  and  opera- 
tions, and  then  extending  in  every  direction,  until  the  laws  of  the 
last  decade  have  made  the  party  system  an  integral  part  of  the 
legal  framework  of  government.  "The  method  of  naming  candi- 
dates for  elective  pubHc  offices  by  poHtical  parties  and  voluntary 
political  organizations,"  runs  the  Oregon  primary  law  of  1905, 
''is  the  best  plan  yet  found  for  placing  before  the  people  the  names 
of  qualified  and  worthy  citizens  from  whom  the  electors  may 
choose  the  officers  of  our  government.  The  government  of  our 
state  by  its  electors  and  the  government  of  a  political  party  by 
its  members  are  rightfully  based  on  the  same  general  principles."  ^ 
A  careful,  but  probably  not  exhaustive,  review  of  the  state 
legislation  of  the  six  years  1901-1906,  reveals  more  than  sixty- 
two  statutes,  many  of  them  broad  and  comprehensive,  regulat- 
ing political  parties    in  their  .varied  operations.^     The    years 

^  For  this  interesting  preamble,  see  Readings,  p.  132. 

^  In  I  go  I  statutes  relating  to  primaries  were  enacted  in  Nebraska,  Cali- 
fornia, Connecticut,  Florida,  Georgia,  Illinois,  Indiana,  Massachusetts,  Min- 
nesota, Missouri,  Montana,  New  Hampshire,  New  York,  North  Dakota, 
Oregon,  and  Tennessee;  in  1902,  in  Maryland,  Massachusetts,  Minnesota, 
Mississippi,  and  New  York;  in  1903,  in  California,  Florida,  Idaho,  Maine, 
Massachusetts,  Nebraska,  New  Hampshire,  Ne\\f  Jersey,  and  Rhode  Island; 
in  1904,  in  Alabama,  Louisiana,  Massachusetts,  New  Jersey,  Ohio,  Oregon, 
and  Wisconsin;  in  1905,  in  Arizona,  Connecticut,  Florida,  Illinois,  Indiana, 
Maine,  Massachusetts,  Nebraska,  New  Hampshire,  North  Dakota,  South 
Carolina,  South  Dakota,  Tennessee,  Wisconsin,  Michigan,  Montana,  and 
Oklahoma;  in  1906,  in  Illinois,  Maryland,  Pennsylvania,  Texas,  Louisiana, 
Michigan,  and  Wisconsin.,  For  a  partial  review  of  1907-1908,  see  Political 
Science  Review,  Vol.  II,  No.  3,  p.  417. 


144  American  Government  and  Politics 

1907-08  showed  no  relaxation  of  legislative  activity  in  this 
direction,  for  they  gave  us  the  most  revolutionary  direct  primary 
laws  yet  devised:  those  of  Wisconsin,  New  Jersey,  Iowa,  Illinois, 
Missouri,  Nebraska,  Washington,  and  Kansas,  leaving  out  of 
account  less  striking  measures.  Oklahoma  came  into  the  Union 
in  1907  with  a  startling  constitution  requiring,  among  other  things, 
that  the  legislature  shall  enact  laws  for  a  mandatory  primary 
system  which  shall  provide  for  the  nomination  of  all  candidates 
in  all  elections  for  state,  district,  county,  and  municipal  offices, 
including  that  of  United  States  Senator.  In  New  York,  Gov- 
ernor Hughes  urged  drastic  reform  in  the  primaries  and  party 
machinery  at  the  legislative  sessions  of  1908,  1909,  and  1910;  and 
in  Connecticut  a  commission  has  reported  to  the  legislature  in 
favor  of  direct  nominations. 

These  new  laws  fix  the  dates  and  places  of  party  primaries, 
provide  official  ballots  furnished  by  the  government  to  all  parties 
without  charge,  regulate  the  composition  and  powers  of  party 
committees,  abolish  conventions  altogether  or  control  their  com- 
position and  procedure,  institute,  in  many  instances,  direct 
nominations  by  party  vote  for  nominations  by  conventions, 
forbid  contributions  by  corporations,  compel  party  committees 
to  account  for  the  receipt  and  disbursement  of  funds,  Hmit  the 
amount  which  the  respective  candidates  may  spend,  and  other- 
wise control  the  machinery  and  practices  of  all  parties.^ 

*  This  whole  subject  is  treated  in  great  detail  below,  chap.  xxx. 


PART  II 
THE  FEDERAL  GOVERNMENT 

CHAPTER  VIII 

THE   GENERAL   PRINCIPLES   OF   THE   FEDERAL   SYSTEM  OF 
GOVERNMENT 

The  Doctrine  of  Limited  Government 

It  is  a  common  error  to  regard  the  federal  Constitution  as  an 
instrument  relating  solely  to  the  government  that  has  its  seat  at 
Washington.  In  reality,  it  provides  a  general  political  system 
by  distributing  the  public  functions  between  the  state  and  na- 
tional governments  and  by  laying  down  certain  fundamental 
limitations  on  the  powers  which  each  may  exercise.  In  other 
words,  while  creating  a  national  executive,  legislature,  and  judi- 
ciary, and  marking  out  their  spheres  of  power,  the  Constitution, 
expressly  and  by  implication,  also  limits  the  domain  within  which 
the  government  of  each  state  must  operate.  It  does  more:  it 
creates  a  system  of  private  rights  secure  against  all  government 
interference;  it  provides  for  each  person  "a  sphere  of  anarchy"  ^ 
—  of  no  government  —  so  to  speak,  within  which  he  may  act 
without  any  intervention  on  the  part  of  public  officials.  In  some 
matters  th€  individual  is  protected  from  the  federal  government, 
in  others  from  the  state  government,  and  in  still  others  he  is 
entirely  free  from  both  governments.  These  limitations  are  not 
mere  poHtical  theories  or  vague  declarations  of  rights;  they  are 
fairly  precise  rules  of  law  expounded  and  applied  by  the  courts, 
enforced  by  proper  executive  authorities,  and  respected  by  the- 
citizens.^ 

'  See  Burgess,  Political  Science  and  Constitutional  Law,  Vol.  I,  pp.  174  ff. 

^  For  the  constitutional  limitations  on  the  federal  government,  see  Read- 
ings, pp.  134  ff.,  and  on  the  state  governments,  ibid.,  pp.  391  ff.   By  a  compari- 
son the  limitations  conmion  to  both  may  be  ascertained. 
L  145 


146  American  Government  and  Politics 

This  system  of  private  rights  or  individual  liberty,  however, 
cannot  be  understood  by  learning  the  clauses  of  the  Constitution 
which  contain  prohibitions  on  the  state  and  federal  governments. 
It  is  really  a  difficult  and  technical  branch  of  law,  to  be  mastered 
only  by  a  painstaking  examination  of  a  long  line  of  }udicial  de- 
cisions interpreting  those  clauses.  Failure  to  recognize  this  fact 
constantly  leads  to  many  incorrect  assertions  about  "the  rights 
of  American  citizens."  For  example,  the  police  of  a  city  forbid  a 
Socialist  parade  or  break  up  a  street  corner  meeting;  immediately 
there  appear  in  the  newspapers  letters  from  indignant  citizens 
denouncing  the  police  for  preventing  the  exercise  of  the  "  rights  of 
free  speech  guaranteed  by  the  Constitution  of  the  United  States." 
An  examination  of  the  clause,  however,  to  which  they  refer  shows 
that  it  is  Congress  that  can  make  no  law  abridging  the  freedom  of 
speech,  the  states  being  left  to  their  own  devices  in  dealing  with 
such  matters.  It  is  not  only  ill-informed  citizens  that  make  this 
error.  Such  a  serious  and  responsible  body  as  the  Republican 
national  convention  in  i860  asserted  in  its  platform,  "That  the 
maintenance  of  the  principles  promulgated  in  the  Declaration 
of  Independence  and  embodied  in  the  federal  Constitution,  — 
*that  all  men  are  created  equal;  that  they  are  endowed  by  their 
Creator  with  certain  inaUenable  rights;  that  among  these  are  life, 
liberty,  and  the  pursuit  of  happiness;  that  to  secure  these  rights, 
governments  are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed,'  —  is  essential  to  the  preserva- 
tion of  our  republican  institutions."  Of  course  any  student  of 
history  and  law  knows  that  the  Constitution  does  not  embody 
any  such  principles,  and  that  the  federal  government  is  controlled 
only  by  the  definite  rules  of  law  imposed  by  the  written  instru- 
ment itself. 

The  fundamental  character  of  these  rules  may  be  best  illus- 
trated by  a  comparison  with  the  English  system.  Any  law 
passed  by  Parliament,  —  that  is,  by  King,  Lords,  and  Commons, 
—  must  be  enforced;  it  cannot  be  called  into  question  by  any 
court;  the  only  remedy  for  the  citizen  is  at  the  ballot-box  when 
members  of  the  House  of  Commons  are  elected.  If  the  British 
Parliament,  therefore,  should  pass  a  law  confiscating  the  land 
now  owned  by  private  persons,  there  would  be  no  relief  for  the 
victims,  unless  the  same  Parliament  or  a  succeeding  one  could  be 
induced  to  repeal  the  law  in  question.      If  the  Congress  of  the 


The  Federal  System  of  Government  147 

United  States,  however,  should  pass  such  a  measure,  it  would  be 
the  duty  of  the  courts  on  the  presentation  of  the  proper  case  to 
protect  the  land-owner  in  his  property  rights  by  declaring  the  law 
null  and  void,  —  in  confhct  with  that  section  of  the  Fifth  Amend- 
ment which  provides  that  no  person  shall  be  deprived  of  life, 
liberty,  or  property  without  due  process  of  law;  and  that  private 
property  shall  not  be  taken  for  public  use  without  just  compen- 
sation.^ Likewise  if  the  legislature  of  a  state  should  pass  such  a 
measure  it  would  be  the  duty  of  the  courts  to  protect  the  citizen 
under  the  Fourteenth  Amendment  forbidding  any  state  to  de- 
prive a  person  of  life,  liberty,  or  property  without  due  process 
of  law  —  compensation  being,  under  judicial  interpretation,  an 
indispensable  feature  of  "due  process."^ 

In  considering  the  limitations  on  the  federal  government,  we 
must  remember  at  the  outset  that  Congress  differs  fundamentally 
from  a  state  legislature.  The  former  has  only  those  powers  which 
are  expressly  conferred  by  the  clauses  of  the  written  instrument ; 
the  latter  enjoys  all  powers  of  government,  except  those  denied 
to  it  by  the  federal  Constitution  and  the  state  constitution  under 
which  it  operates.  The  Hmited  character  of  congressional 
authority  is  evident  in  the  Constitution  itself;  and  it  is  expressly 
enunciated  in  the  Tenth  Amendment,  declaring  that,"  The  powers 
not  delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  states,  are  reserved  to  the  states  respectively, 
or  to  the  people."  Nevertheless,  Congress,  acting  under  the 
clause  authorizing  it  to  make  all  laws  necessary  and  proper  for 
carrying  into  execution  the  powers  expressly  conferred,  has  been 
by  no  means  as  limited  as  the  literal  interpretation  of  this  doc- 
trine would  seem  to  imply.^ 

Private  Rights  under  the  Federal  Constitution  ^ 

The  constitutional  limitations  on  the  federal  government  fall 
into  two  groups :  '  {a)  Those  designed  to  protect  personal  liberty 

^  Of  course  private  property  cannot  be  taken  for  private  use  at  all. 

*  It  should  be  noted,  however,  that  the  state  retains  its  "  police  power  " 
in  spite  of  the  constitutional  limitations  —  that  is,  its  power  to  make  laws  in 
the  interest  of  heahh,  public  safety,  morals,  etc.  See  Readings,  p.  394  and 
below,  chap.  xxii.  ^  Readings,  pp.  66  ff.  and  237  ff.;   see  above,  p.  72. 

■^  Reference:  Buigess,  Political  Science  and  Constitutional  Law,  Vol.  I, 
pp.  184  fif. 

*  The  Ihnitations  on  state  government  are  discussed  below  in  chap.  xxii. 


T48  American  Government  and  Politics 

against  arbitrary  interference  on  the  part  of  the  government,  anc 
(^>)  those  designed  to  protect  private  property  against  confis 
cation  and  irregular  action  on  the  part  of  federal  authorities. 

I.  The  Umitations  on  behalf  of  personal  rights,  which,  unde] 
the  Constitution  run  against  the  federal  government,  may  b( 
divided  into  five  classes.  In  the  first  place.  Congress  cannot  makt 
'  any  law  respecting  the  estabhshment  of  a  rehgion,  nor  can  it  in- 
terfere with  the  freedom  of  religious  worship.  This  does  nol 
mean,  however,  that  any  person  has  a  right  to  commit  an  act 
under  the  guise  of  a  religious  ceremony,  which  transgresses  the 
ordinary  law  of  the  land.  This  point  was  discussed  by  the  Su- 
preme Court  in  a  case  involving  the  right  of  Congress  to  prohibit 
polygamy  in  the  territory  of  Utah  and  punish  offenders  who 
violated  the  law.V  Under  this  statute  a  Mr.  Reynolds,  who  was 
indicted  for  the  crime  of  polygamy,  set  up  by  way  of  defence  the 
contention  that  the  church  to  which  he  belonged  enjoined  the 
practice  of  polygamy  upon  its  male  members,  and  that,  under  a 
religious  sanction  and  according  to  a  religious  ceremony,  he  had 
married  two  wives.  The  Court  held,  however,  that  religion  has 
to  do  only  with  the  relations  of  man  to  "  an  extra-mundane  being," 
and  that  no  citizen  can  claim  a  right,  in  the  name  of  religious 
freedom,  to  violate  a  criminal  statute. 

In  the  second  place.  Congress  has  no  power  to  abridge  freedom 
of  speech  or  of  the  press.^  It  was  the  purpose  of  this  clause  to 
prevent  Congress  from  estabUshing  a  press  censorship  or  enacting 
any  law  prohibiting  political  criticism.  In  spite  of  this  express 
provision,  Congress  passed  in  1798  a  Sedition  Act  providing  heavy 
penalties  for  resisting  the  lawful  acts  of  the  federal  officials  and 
for  publishing  anything  bringing  or  tending  to  bring  the  federal 
government  or  any  of  its  officers  into  disrepute.  Under  this  act 
many  American  citizens  were  fined  and  imprisoned  for  what 
would  be  regarded  to-day  as  harmless  criticism  of  public  author- 
ities. When  the  law  was  brought  before  the  Supreme  Court, 
that  tribunal  decided  the  case  on  a  technicaUty  and  refused  to  pass 
upon  the  question  of  constitutionality.^ 

^  Reynolds  v.  United  States,  98  U.  S.  R.,  145. 

^  In  the  territories  and  the  District  of  Columbia,  of  course.  Congress,  hav- 
ing general  legislative  power,  can  estabhsh  the  law  of  libel  and  slander.  Con- 
gress legislates  directly  for  the  District  of  Columbia,  and  in  the  organized 
territories  the  legislatures  make  the  law  under  authority  of  Congress. 

'  United  States  v.  Hudson  and  Goodwin,  7  Cranch,  32. 


The  Federal  System  of  Government  149 

In  the  third  place,  the  Constitution  guarantees  to  the  people 
the  right  to  assemble  peaceably  and  petition  the  government  for 
redress  of  grievances.  This  right  is  upheld  against  state  govern- 
ments as  well  as  the  federal  government;  but,  of  course,  it  does 
not  secure  to  the  petitioners  the  privilege  of  having  their  petition 
acted  upon  by  the  federal  authorities.^ 

In  the  fourth  place,  the  power  of  the  federal  government  to 
punish  persons  is  hedged  about  in  many  ways.  Congress  has  no 
power  to  define  treason;  it  is  defined  in  the  Constitution:  "Trea- 
son against  the  United  States  shall  consist  only  in  levying  war 
against  them  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort."  Congress  cannot,  therefore,  vindictively  declare 
any  act  treason  which  does  not  meet  its  approval. 

Furthermore,  the  trial  of  persons  accused  of  this  high  crime  is 
carefully  safeguarded.  No  person  can  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  overt  act  or  on 
confession  in  open  court.  In  the  case  of  the  United  States  v. 
The  Insurgents,^  the  Court  ordered  that  the  names,  residences, 
and  occupations  of  the  jurors,  and  a  complete  list  of  witnesses 
should  be  furnished  the  accused;  and  that  a  reasonable  time  be 
allowed  for  the  defence  to  prepare  its  case  after  receiving  this  in- 
formation. The  Court,  furthermore,  declared  that  until  the  overt 
act  of  treason  had  been  proved  by  testimony  of  two  witnesses, 
no  evidence  relating  to  the  charges  could  be  introduced. 

While  Congress  has  the  power  to  provide  the  penalties  for 
treason,  the  Constitution  expressly  stipulates  that  no  attainder 
of  treason  shall  work  corruption  of  blood  or  forfeiture  except  dur- 
ing the  life  of  the  person  attainted.  In  old  English  practice, 
corruption  of  blood  meant  the  destruction  of  all  inheritable 
qualities,  so  that  any  attainted  person  could  not  inherit  lands  or 
other  hereditaments  from  his  ancestors  nor  retain  those  which  he 
already  possessed  or  transmit  them  to  his  heirs.^  The  consti- 
tutional provision  mentioned  above  was  designed  to  prevent  this 
punishment  of  the  relatives  of  traitors*  and  accordingly  no  pun- 
ishment or  proceedings  may  be  construed  to  work  a  forfeiture  of 
the  real  estate  of  a  traitor  longer  than  his  natural  life.^ 

^  Burgess,  Middle  Period,  pp.  253-296.  *  2  Dallas,  335. 

^  Story,  Commentaries  on  the  Constitution  (5th  ed.),  sec.  1299. 
*  Bigelow  V.  Forrest,  9  Wallace,  339. 


150  American  Government  and  Politics 

In  the  fifth  place,  proceedings  against  persons  charged  with 
crime  under  the  federal  law  are  controlled  by  several  expUcit 
provisions.  Congress  cannot  act  as  a  court  by  passing  a  bill  of 
attainder  condemning  any  person  to  death  or  to  imprisonment 
or  imposing  any  penalty  whatsoever.  Congress  can  pass  no  ex 
post  facto  law ;  that  is,  no  law  making  an  act  a  crime  which  was 
not  a  crime  when  committed,  or  adding  new  penalties  after  a 
commission  of  an  act,  or  modifying  the  procedure  in  any  such  way 
as  to  make  it  substantially  easier  to  convict.^  Federal  authori- 
ties have  no  power  of  arresting  wholesale  on  general  warrant; 
all  warrants  of  arrest  must  be  issued  only  upon  probable  causes 
supported  by  oath  or  affirmation  and  particularly  describing  the 
place  to  be  searched  and  the  persons  and  things  to  be  searched. 
Indictment  by  grand  jury  and  trial  by  jury  are  secured  to  all 
persons  coming  within  the  jurisdiction  of  the  federal  authorities, 
except  in  the  insular  possessions.^  The  writ  of  habeas  corpus  can- 
not be  suspended  unless  in  case  of  rebellion  or  invasion,  when  it  ^ 
may  be  required  by  pubHc  safety;  that  is,  under  all  ordinary  I 
circumstances  any  person  held  by  federal  authorities  has  the  right 
to  have  a  speedy  preliminary  hearing  before  a  proper  judicial 
,  tribunal.^  Excessive  bail  cannot  be  demanded  by  federal  authori- 
ties; in  other  words,  except  in  capital  cases,  federal  courts  must 
release  prisoners  on  bail,  and  must  not  fix  the  amount  at  such  an 
'  unreasonable  sum  as  practically  to  deny  the  right.  Finally,  in 
general,  the  federal  government  must  allow  due  process  of  law 
in  all  of  its  criminal  proceedings:  the  trial  must  be  open  and 
speedy  and  in  the  state  and  district  where  the  crime  was  com- 
mitted; the  defendant  must  be  informed  of  the  nature  and  cause 
of  the  charge  against  him;  the  witnesses  against  him  must  be 
brought  face  to  face  with  him;  he  may  force,  by  compulsory  pro- 
cess, the  attendance  of  witnesses  in  his  favor;  he  cannot  be  com- 
pelled to  testify  against  himself  in  any  criminal  case;  and  he  has 
a  right  to  have  the  assistance  of  counsel  in  his  own  behalf.^ 


*  Of  course,  Congress  is  not  so  limited  in  making  laws  applicable  to  aci 
which  may  be  committed  in  the  future. 

2  See  below,  chap.  xxi.  ^  Below,  chap,  xv 

•*  It  must  be  noted  that  these  privileges  in  criminal  matters  are  not  ex 
tended  to  cases  arising  in  the  land  and  naval  forces  or  in  the  militia  when  in 
active  service  in  time  of  war  or  public  danger.     See  below,  chap,  xvii 


i 


d 


The  Federal  System  of  Government        "v  ^5^ 


II.   The  limitations  on  the  federal  government  ^  in  behalf  of 
property  rights  are  relatively  few  in  number,  but  they  are  funda- 
mental in  character.     The  power  to  define  property  is  under  our 
system  left  to  the  state  governments,  subject  to  the  one  great  re- 
striction that  slavery  and  involuntary  servitude,  that  is,  property^ 
in  man,  shall  not  exist.    Congress  has  no  power  to  define  property 
except  in  the  territories  not  organized  into  states.'     Moreover, 
the  Constitution  provides  some  exphcit  limitations  on  the  power 
of  the  federal  government  to  attack  the  property  of  private  per-  ' 
sons:   Congress  cannot  impose  duties  on  articles  exported  from 
any  state;  all  direct  taxes  must  be  apportioned  according  to  the 
population  so  that  a  majority  of  the  people  cannot  shift  the  bur- 
den of  direct  taxation  to  the  minority.^    Duties,  imposts,  and 
excises  must  be  uniform,  that  is,  must  fall  upon  the  same  article 
with  the  same  weight  everywhere  throughout  the  United  States. 
in  order  to  protect  the  taxpayer,  it  was  provided  in  the  Consti- 
tution that  revenue  bills  must  originate  in  the  Hou§e  of  Represen-    \ 
tatives,  which  is  composed  of  members  chosen  directly  by  the      ] 
voters;  but  this  provision  is  a  dead  letter  in  practice.     The  Con- 
stitution also  stipulates  that  no  money  shall  be  drawi  ♦from  the  ♦ 
treasury  except  under  appropriations  made  by  law;  consequently  , 
the  executive  authority  cannot  on  its  own  motion  withdraw 
money  from  the  public  treasury. 

It  is  not  only  by  way  of  taxation  that  the  federal  government 
may  approach  private  property.  It  enjoys  the  power  of  eminent 
domain;  in  other  words,  it  may  take  private  property  for  pubUc 
use;  but  it  must  make  just  compensation  to  the  owner.  In  de- 
termining what  is  just  compensation,  federal  authorities  must 
take  into  account  the  use  for  which  the  property  in  question  is 
suitable  and  pay  due  regard  to  the  existing  business  or  wants  of 
the  community  and  such  as  may  be  reasonably  expected  in  the 
immediate  future.  The  proceedings  in  ascertaining  the  value  of 
property  taken  for  public  use  may  be  prosecuted  before  com- 
missioners or  special  boards  or  the  courts,  with  or  without  the 

*  For  federal  limitations  on  state  governments  in  behalf  of  property,  see 
below,  chap.  xxii. 

^  Congress  may  define  property,  however,  in  inventions  and  publications      ^ 
under  its  right  to  grant  to  authors  and  inventors  special  privileges  with  re-, 
gard  to  their  respective  writings  and  discoveries. 

'  See  Readings,  pp.  283  ff.  and  323  ff. 


152  American  Government  and  Politics 

intervention  of  a  jury  as  Congress  may  determine.  All  that  is 
required  is  that  the  examination  into  the  value  of  the  property 
shall  be  conducted  in  some  fair  and  just  manner  affording  to  the 
owner  of  the  property  in  question  an  opportunity  to  present  evi- 
dence as  to  its  value  and  to  be  heard  on  that  matter.^ 

The  Separation  oj  Powers 

Second  in  importance  to  the  doctrine  that  our  government  is 
limited  by  certain  fundamental  principles  of  law  is  the  theory 
that  the  power  conferred  on  the  federal  government  must  be  dis- 
tributed among  three  distinct  departments :  legislative,  executive, 
and  judicial.  This  is  a  doctrine  which  publicists  delight  to  ex- 
pound with  great  show  of  historical  learning;  it  is  a  legal  prin- 
ciple interpreted  by  the  courts  and  applied  to  concrete  cases  like 
any  other  rule  of  the  Constitution;  -  it  is  a  political  slogan  reiter- 
ated in  Congress  with  great  vehemence,  especially  in  times  when 
the  President,  expressing  more  accurately  the  living  forces  of  the 
nation  than  do  the  Senators  and  Representatives,  overshadows, 
in  influence,  the  legislative  branch  of  the  government. 

According  to  the  traditional  account,  this  doctrine  came  into 
our  law  and  practice  from  Montesquieu,  whose  treatise  on  the 
Spirit  of  the  Laws  was  a  veritable  political  text-book  for  our 
eighteenth-century  statesmen,  and  it  was  derived  by  that  dis- 
tinguished French  author  from  his  study  of  the  English  consti- 
tution. In  point  of  fact,  however,  the  doctrine,  as  far  as  Mon- 
tesquieu was  concerned,  was  a  notion  which  he  acquired  during  a 
conflict  between  the  judiciary  and  king  in  France  in  which  he 
participated,  and  afterwards  read  into  his  study  of  the  institu- 
tions of  England.^  As  a  principle  of  law  and  government,  it  is  a 
part  of  that  system  of  checks  and  balances  and  subdivisions  of 
power  by  which  statesmen  have  sought  to  prevent  the  develop- 
ment of  that  type  of  democracy  that  functions  through  simple 
legislative  majorities.^    It  is  explained  with  great  insight  by 

^  Boom  Co.  V.  Patterson,  98  U.  S.  R.,  403;  United  States  v.  Jones,  109 
U.  S.  R.,  513. 

^  See  Readings,  p.  138,  for  an  important  judicial  decision  on  this  point. 

'  Hatschek,  Englisches  Staatsrecht,  p.  24. 

*  The  place  of  the  theoi-y  of  separation  of  powers  in  the  evolution  of  govern- 
ment is  thus  described  by  Treitschke  in  comparing  Sieyes  and  Rotteck: 


The  Federal  System  of  Government  153 

Madison,^  and  thus  eloquently  defended  by  Webster:  "The  spirit 
of  liberty  ...  is  jealous  of  encroachments,  jealous  of  power,  jeal- 
ous of  man.  It  demands  checks;  it  seeks  for  guards;  it  insists  on 
securities;  it  intrenches  itself  behind  strong  defences,  and  forti- 
fies itself  with  all  possible  care  against  the  assaults  of  ambition  and 
passion." 

The  doctrine  is  not  expressly  stated  in  a  separate  article  in  the 
federal  Constitution,  as  in  several  state  constitutions,  but  is  thus 
embodied  in  the  opening  sentences  of  the  three  articles  relating 
to  the  legislative,  executive,  and  judicial  power:  "All  legislative 
powers  herein  granted  shall  be  vested  in  a  Congress  of  the  United 
States.  .  .  .  The  executive  power  shall  be  vested  in  a  President 
of  the  United  States.  .  .  .  The  judicial  power  .  .  .  shall  be, 
vested  in  one  Supreme  Court  and  such  inferior  courts  as  Con- 
gress may  from  time  to  time  ordain  and  establish."  Thus,  says 
Kent,  the  Constitution  has  effected  the  separation  of  powers 
"with  great  felicity  of  execution,  and  in  a  way  well  calculated  to 
preserve  the  equal  balance  of  the  government." 

A  close  examination  of  the  Constitution,  however,  shows  that 
the  men  who  framed  it  were  imable  to  maintain  the  purity  of  the 
principle  when  they  came  to  prescribing  the  mode  of  exercising 
the  powers  of  government  in  detail.  Indeed,  it  was  thoroughly 
understood  by  the  framers  that  a  complete  separation  of  powers 
was  impossible,  save  in  the  realm  of  pure  theory. 

The  appointing  power  of  the  President  is  shared  by  the  Senate; 
so  is  his  treaty-making  power.  Owing  to  the  amount  and  variety 
of  executive  business,  the  President  must  function  through  de- 
partmental offices,  and  these  are  created  9.nd  to  some  extent  con- 
trolled by  Congress.  On  the  other  hand,  the  President  shares 
in  legislation  through  his  veto  power  and  his  right  to  send  as 
many  messages  as  he  chooses.  Even  the  Supreme  Court  which 
is  created  by  the  Constitution  lies  at  the  mercy  of  Congress,  for 
Congress  may  prescribe  the  number  of  the  judges  and  fix  their,/ 
salaries  subject  to  certain  restrictions.     It  might,  for  instance, 

"  Er  setzt  ihn  Rotteck  an  die  Seite:  dieser  habe  die  Lehre  des  Contrat  Social 
dutch  einige  Begriffe  des  monarchischen  Staatsrechts  verdiinnt,  Sieyes  das 
Feuer  der  Rousseauschen  Volkssouveranitat  mit  dem  Wasser  der  Montes- 
quieuschen  Gewaltenteilung  verschmolzen."  Zweig,  Die  Lehre  vom  Pouvoir 
Constituant,  p.  ii6. 
^  Readings,  p.  50. 


154  American  Government  and  Politics 

fail  to  create  the  requisite  lower  and  intermediate  courts,  reduce 
the  number  of  judges,  and  through  the  confirming  power  of  the 
Senate  secure  pHant  judges;  and  thus  overthrow  the  ^prestige 
of  the  judiciary  or  make  it  subservient  to  the  legislative 
branch. 

Furthermore,  poUtical  practice  has  shown  that  the  influence  of 
a  department  of  the  government  depends  not  so  much  upon  the 
legal  authority  which  it  enjoys  as  upon  the  great  interests  which 
function  through  it.^  For  example,  during  the  period  of  Recon- 
struction, Congress  dominated  the  executive,  overrode  his  exer- 
cise of  the  veto  power,  and  through  the  Tenure  of  Office  Act  and 
other  measures  gathered  into  its  hands  almost  the  whole  domain  of 
federal  authority.^  Recently  the  executive  has  come  to  the  front 
as  the  more  popular  and  influential  branch  of  the  federal  govern- 
ment, although  not  without  protests  from  Congress.^ 

As  a  legal  doctrine  apphed  by  the  courts,  the  theory  of  the 
division  of  powers  takes  a  more  precise  form.  It  was  early  ap- 
plied in  Hayburn's  case  relative  to  an  act  of  Congress  authorizing 
judges  of  the  circuit  courts  to  receive  and  hear  certain  claims  to 
pensions,  subject  to  the  supervisory  powers  of  the  Secretary  of 
War.  The  judges  agreed  that  the  power  which  Congress  sought 
to  confer  was  not  judicial  in  its  nature,  and  they  therefore  re- 
fused to  serve  in  the  capacity  required  by  the  law.^  The  judges 
for  the  district  of  North  Carolina  stated  that  the  courts  were  not 
warranted  in  exercising  "any  power  not  in  its  nature  judicial,  or 
if  judicial,  not  provided  for  upon  the  terms  the  Constitution  re- 
quires." To  cite  another  instance,  a  statute  empowering  the 
Secretary  of  War  to  inquire  and  determine  whether  a  bridge  ob- 
structs navigation,  and,  on  concluding  that  it  does,  to  order  its 
alteration,  is  void  because  it  delegates  to  an  executive  officer 
legislative  powers  vested  by  the  Constitution  in  Congress.^ 

The  soundness  of  the  theory  of  the  separation  of  powers  as  a 
practical  working  scheme  of  government  has  been  rather  severely 
criticised  recently  by  two  eminent  publicists.  Professor  Ford  and 

^  Readings,  p.  265,  for  Senator  Beveridge's  view  of  executive  influence. 
^  Haines,  Conflict  over  the  Jtidicial  Powers,  pp.  165  fif. 
^  Readings,  pp.  265  and  442. 

*  Supreme  Court  decisions:  2  Dallas,  410;  see  also  Gordon  v.  United 
States,  117  U.  S.  R.,  697. 

*  Kent,  Commentaries  on  American  Law  (14th  ed.),  Vol.  I,  p.  221,  note. 


The  Federal  System  of  Government  155 

Professor  Goodnow.^  They  hold  that  the  functions  of  govern-\ 
ment  are  only  twofold,  the  formulation  and  execution  of  public  ^ 
will,  —  that  is  legislative  and  executive,  —  the  judiciary  being 
merely  a  branch  of  the  law-enforcing  power.  /  In  their  view  the 
separation  of  powers  only  creates  friction  in  the  government, 
divides  responsibility,  necessitates  iron-bound  party  machinery 
outside  the  government  to  overcome  the  unwieldiness  of  the  sys- 
tem, and  altogether  works  for  confusion  and  obscurity  instead 
of  simplicity  and  efficiency.  They  cite  the  English  system,  in 
which  the  legislative  and  executive  powers  are  fused  under  the 
direction  of  the  Cabinet,  and  the  judiciary  cannot  pass  on  the 
constitutionality  of  laws. 

In  response  to  this  criticism.  Professor  Burgess  contends:  "I 
think  that  we  are  upon  the  right  line,  and  that  those  nations 
which  have  developed  parliamentary  government  are  beginning 
to  feel,  as  suffrage  has  become  more  extended,  the  necessity  of 
greater  executive  independence.  Parliamentary  government, 
i.e.,  government  in  which  the  other  departments  are  subject  to 
legislative  control,  becomes  intensely  radical  under  universal 
suffrage,  and  will  remain  so  until  the  character  of  the  masses  be- 
comes so  perfect  as  to  make  the  form  of  government  very  nearly 
a  matter  of  indifference. /There  is  no  doubt  that  we  sometimes 
feel  embarrassment  from  a  conflict  of  opinion  between  the  inde- 
pendent executive  and  the  legislature,  but  this  embarrassment 
must  generally  result  in  t^he  "adoption  of  the  more  conservative 
course,  which  is  far  less  dangerous  than  the  course  of  radical  ex- 
perimentation. .  .  .  The  f eature^gr  excellence  of  the  American 
governmental  system  is  the  constitutional,  independent,  unpo- 
litical jildiciary  and  the  supremacy  of  the  judiciary  over  the  other 
departments  in  all  cases  where  private  rights  are  concerned."  ^ 
This  undoubtedly  represents  the  prevailing  view  of  American 
publicists  and  statesmen,  and  is  at  all  events  the  fundamental 
doctrine  of  our  law. 

*  Ford,  Rise  and  Growth  of  American  Politics;  Goodnow,  Politics  and  Ad- 
ministration. 

^  Political  Science  Quarterly,  Vol.  X,  p.  420. 


156  American  Government  and  Politics 


The  Supremacy  of  Federal  Law 

"This  Constitution  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made  or  which 
shall  be  made  under  the  authority  of  the  United  States  shall  be 
the  supreme  law  of  the  land."  So  runs  the  federal  Constitution, 
—  apparently  as  clear  as  a  statement  of  law  can  be,  —  but  it 
leaves  unsettled  the  question  as  to  the  power  that  shall  decide 
what  laws  of  the  United  States  are  duly  made  in  pursuance  of  the 
provisions  of  the  Constitution  and  what  state  laws  are  in  conflict 
with  the  superior  law.  This  question  involves  the  very  nature 
of  the  federal  Union,  and  for  more  than  half  a  century  the  famous 
controversy  over  states'  rights  raged  around  it.  Happily,  how- 
ever, it  is  now  definitely  settled,  arid  its  leading  features  are  of 
historical  interest  only.*  Federal  law  is  supreme ;  and,  in  the  last 
instance,  the  Supreme  Court  of  the  United  States  is  the  final  in- 
terpreter of  that  law.  The  decisions  of  this  Court  are  binding 
on  Congress,  the  states,  and  private  persons. 

The  application  of  this  principle  may  be  illustrated  by  two 
cases.  Congress  provided  by  law  that  when  any  civil  suit  or 
criminal  prosecution  was  begun  against  a  federal  revenue  officer 
in  any  court  of  a  state,^  the  case  could  be  immediately  removed 
into  the  federal  courts.  A  federal  revenue  officer,  in  the  discharge 
of  his  duty,  killed  a  man  in  Tennessee,  and  his  case,  against  the 
protest  of  the  state,  was  removed  to  a  federal  court  in  due  form. 
In  discussing  the  constitutionality  of  this  law,  Mr.  Justice  Strong 
said  of  the  federal  government:  — 

"It  can  act  only  through  its  officers  and  agents,  and  they  must 
act  within  the  states.  If,  when  thus  acting,  and  within  the  scope 
of  their  authority,  these  officers  can  be  arrested  and  brought  to 
trial  in  a  state  court  for  an  alleged  offence  against  the  law  of  the 
state,  yet  warranted  by  the  federal  authority  they  possess,  and 
if  the  general  government  is  powerless  to  interfere  at  once  for 
their  protection,  —  if  their  protection  must  be  left  to  the  action 
of  the  state  courts,  —  the  operations  of  the  general  government 
may  at  any  time  be  arrested  at  the  will  of  one  of  its  members. 
The  legislature  of  a  state  may  be  unfriendly.     It  may  affix  pen- 

^  Readings,  p.  140.  '  On  account  of  an  official  act,  of  course. 


The  Federal  System  of  Government  157 

alties  to  acts  done  under  the  immediate  direction  of  the  national 
government  and  in  obedience  to  its  laws.  It  may  deny  the  au- 
thority conferred  by  those  laws.  The  state  court  may  administer 
not  only  the  laws  cif  the  state,  but  equally  federal  law,  in  such  a 
manner  as  to  paralyze  the  operations  of  the  government.  .  .  . 
We  do  not  think  such  an  element  of  weakness  is  to  be  found  in  the 
Constitution.  .  .  .  No  state  government  can  exclude  it  from 
the  exercise  of  any  authority  conferred  upon  it  by  the  Constitu- 
tion, obstruct  its  authorized  officers  against  its  will,  or  withhold 
from  it,  for  a  moment,  the  cognizance  of  any  subject  which  that 
instrument  has  committed  to  it."'^ 

Another  phase  of  federal  supremacy  is  illustrated  by  the  case 
involving  the  constitutionality  of  a  law  passed  in  New  York  fixing 
the  hours  for  workmen  in  bakeries.  The  owner  of  a  bakery  con- 
tended that  this  law  violated  the  principles  of  the  federal  Con- 
stitution, and  on  appeal  to  the  Supreme  Court  his  contention  was 
upheld.  Thus  the  state  law  was  set  aside  by  the  superior  force 
of  the  federal  Constitution.^ 

Interstate  Relations 

The  Constitution  secures  to  the  citizens  of  each  state  the  privi-  . 
leges  and  immunities  of  the  citizens  in  the  several  states,  and 
the  federal  judiciary  defines  and  enforces  them  by  proper  pro- 
cesses. This  means  that  there  are  certain  great  legal  rights^ 
necessary  to  free  migration  throughout  the  American  empire^  ^ 
to  the  successful  conduct  of  business  and  industry,  and  to  the 
enjoyment  of  property,  which  no  state  may  take  away  from 
a  citizen  of  another  commonwealth  coming  within  its  borders. 
It  means  also  that  no  state  may  confer  civil  rights  on  its  own  citi- 
zens and  at  the  same  time' withhold  those  rights  from  citizens 
of  other  states.*  It  does  not  mean,  however,  that  A.  of  Illinois, 
on  moving  into  Indiana,  may  claim  all  privileges  which  he 

^  Tennessee  v.  Davis,  loo  U.  S.  R.,  257. 

"^Readings,  p.  617;  Willoughby,  The  American  Constitutional  System, 
chaps,  v-x. 

^  Readings,  p.  146,  for  judicial  interpretation  of  the  rights;  see  also  the  lucid 
discussion  of  the  question  in  Willoughby,  American  Constitutional  System, 
pp.  278  ff. 

*  Civil  rights  —7  rights  of  person  and  property  —  should  always  be  distin- 
guished from  political  rights  —  the  right  to  vote,  hold  ofl&ce,  etc. 


158  American  Government  and  Politics 

enjoyed  in  the  former  state;  he  is,  on  the  contrary,  entitled  only 
to  the  rights  enjoyed  by  citizens  of  the  latter  state.     For  example, 

A.  enjoys  in  Illinois  the  right  to  sell  cigarettes  subject  to  certain 
restrictions;  in  Indiana  the  sale  of  cigarettes  is  forbidden  by  law; 
consequently  A.  cannot  claim  there  the  privilege  which  he  had 
in  the  former  state. 

A  concrete  illustration  is  afforded  by  the  case  of  Ward  2;. 
Maryland.^  By  a  law  passed  in  1868  the  Maryland  legislature 
provided  that  persons  not  permanent  residents  in  the  state  must 
take  out  licenses  before  offering  for  sale,  within  certain  districts, 
goods  not  manufactured  within  that  commonwealth.  Ward,  the 
plaintiff  in  the  case,  was  a  resident  of  New  Jersey,  and,  with- 
out procuring  a  license,  he  sold  within  the  prohibited  district 
goods  not  manufactured  in  Maryland.  He  was  accordingly 
arrested  for  violating  the  law,  but  set  up  the  contention  that  the 
law  of  Maryland  was  in  contravention  of  the  federal  Constitution. 
When  the  case  came  before  the  Supreme  Court  of  the  United 
States,  it  was  held  that  the  statute  in  question  was  "repugnant 
to  the  second  section  of  the  fourth  article  of  the  Constitution, 
which  provides  that  the  citizens  of  each  state  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several  states."  ^ 

To  faciHtate  intercourse  among  the  several  states,  especially 
in  the  transaction  of  legal  business,  the  Constitution  provides 
that  full  faith  and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  state. 
Congress  has  provided  by  law  the  form  in  which  such  acts  and 
proceedings  shall  be  authenticated,  and  has  ordered  that,  when 
so  authenticated,  "such  faith  and  credit  shall  be  given  them 
in  every  court  within  the  United  States  as  they  have  by  law  and 
usage  in  the  courts  of  the  state  from  which  they  are  taken." 
This  provision  works  out  in  the  following  way.  A.  brings  suit 
against  B.  in  a  court  in  Ohio,  of  which  state  they  are  both  resi- 
dents; and,  after  trial,  the  Ohio  court  decides  that  B.  owes  A. 
$1000  and  gives  judgment  accordingly.  B.  thereupon  moves 
into  New  York,  taking  his  property  along,  before  it  can  be  at- 
tached for  the  debt.     When  A.  in  quest  of  his  money  goes  after 

B.  into  New  York,  it  is  not  necessary  that  the  case  should  be 

*  Ward  V.  Maryland,  12  Wallace,  418. 

*  Willoughby,  op.  cit.,  pp.  280-281;  Readings,  p.  146. 


The  Federal  System  of  Government  159 

tried  again  in  order  to  get  the  proper  process  to  recover  his 
money.  All  he  has  to  do  is  to  show  in  the  New  York  court  of 
proper  jurisdiction  the  authenticated  judgment  of  the  Ohio 
court.  B.  may  contend  that  the  records  are  not  authentic,  or 
the  court  that  rendered  the  first  judgment  did  not  have  juris- 
diction, but  he  cannot  secure  a  reopening  of  the  case  on  its  merits.' 

The  extradition  of  criminals,  long  an  international  practice 
based  on  treaty  stipulations  between  independent  countries,  was 
carried  over  into  the  federal  Constitution  by  the  provision  that 
any  person  charged  with  crime,  fleeing  from  justice  and  found  in 
another  state,  shall  be  delivered  up  on  demand  of  the  executive 
authority  of  the  state  from  which  he  fled  to  be  removed  for  trial 
in  the  state  having  jurisdiction  of  the  crime.  Congress  has 
amplified  the  constitutional  provision  by  an  act  declaring  that 
on  the  demand  from  the  proper  authority,  ''it  shall  be  the  duty 
of  the  executive  authority  of  the  state"  to  cause  the  fugitive  to 
be  seized  and  handed  over  to  the  agent  of  the  state  making  the 
requisition.  The  words  "it  shall  be  the  duty"  were  interpreted 
by  Chief  Justice  Taney  as  merely  declaratory  of  a  moral  duty, 
not  as  mandatory  and  compulsory.  "The  act,"  continued  the 
Justice,  "does  not  provide  any  means  to  compel  the  execution 
of  this  duty,  nor  inflict  any  punishment  for  neglect  or  refusal 
on  the  part  of  the  executive  of  the  state;  nor  is  there  any  clause 
or  provision  in  the  Constitution  which  arms  the  government  of 
the  United  States  with  this  power."  The  governor  of  a  state  is 
therefore  under  a  moral  obligation  to  surrender  criminals,  but  he 
may  use  his  discretion  in  the  matter.^ 

The  exact  process  followed  in  the  rendition  of  criminals  is 
prescribed  in  an  Act  of  Congress.  In  addition  most  states  have 
statutes  providing  that  an  accused  person  can  be  arrested  upon 
information  of  the  charge  being  received,  and  held  until  the 
official  demand  is  made.  Let  us  suppose  that  A.  commits 
murder  in  Ohio  and  escapes  into  Indiana.  As  soon  as  his  where- 
abouts are  discovered,  the  authorities  of  the  place  where  the 
offence  was  committed  will  request  his  arrest,  and  he  will  be  taken 
into  custody  by  the  police  or  the  sheriff  of  the  locality  where  he 
is  found.     A  regular  charge  will  then  be  lodged  against  him  in 

^  Willoughby,  op.  cit.,  pp.  273  fit. 

^  See  Readings,  p.  148,  for  a  practical  example. 


i6o  American  Government  and  Politics 

Ohio,  if  this  has  not  been  already  done,  either  by  an  indictment 
by  grand  jury  or  an  affidavit  made  before  a  magistrate.  There- 
upon the  governor  of  Ohio  will  issue  to  the  governor  of  Indiana  a 
formal  demand  for  the  surrender  of  A.,  appending  to  it  a  certified 
copy  of  the  indictment  or  affidavit.  If  the  governor  of  Indiana 
finds  that  the  papers  are  regular  and  that  A.  is  a  fugitive  from 
Ohio  and  was  in  that  state  at  the  time  that  the  alleged  murder 
was  committed,  he  will  issue  an  order  for  his  surrender  to  the 
agent  appointed  for  that  purpose  by  the  governor  of  Ohio.  A. 
will  then  be  taken  to  Ohio  and  tried  for  the  murder.^ 


Citizenship  and  the  Suffrage 

In  international  law,  the  term  "citizenship"  means  member- 
ship in  a  nation,  but  at  the  time  of  the  formation  of  our  federal 
Constitution  it  had  received  no  very  definite  connotation  either 
in  law  or  popular  practice.^  The  Constitution,  therefore, 
speaks  of  "citizens  of  the  United  States"  and  "citizens  of  the 
states";  but  a  strict  usage  of  the  term  would  require  us  to  speak 
of  citizens  of  the  United  States  and  residents  or  inhabitants-of  the 
states,  although  this  usage  might  popularly  be  regarded  as  a 
species  of  pedantry.  The  state,  however,  has  no  power  to  con- 
fer or  withhold  citizenship,  although  it  may,  as  will  be  seen 
later,  confer  many  civil  and  political  rights  on  foreigners.  The 
exclusive  right  to  admit  aliens  to  citizenship  is  given  to  the 
federal  government  by  the  clause  authorizing  Congress  to  make 
uniform  rules  of  naturalization. 

Citizenship  in  the  United  States  may  be  acquired  by  birth  or 
by  naturalization.  All  persons  born  in  the  United  States  and  not 
subject  to  any  foreign  power,  excluding  Indians  not  taxed,  are 
ipso  facto  citizens  of  the  United  States.  This  is  called  citizen- 
ship by  reason  of  birth  in  a  particular  place,  i.e.,  jure  soli.  To 
secure  civic  rights  to  children  born  to  citizens  of  the  United 
States  residing  abroad,  Congress  has  provided  by  law  that  all 
children  born  out  of  the  limits  and  jurisdiction  of  the  United 
States,  whose  tathers  are  at  the  time  of  their  birth  citizens  thereof, 
shall  be  deemed  citizens  of  the  United  States.     The  rights  of 

*  Reference:  J.  B.  Moore,  Extradition  and  Interstate  Rendition. 
^  Thayer,  Cases  on  Constitutional  Law,  Vol.  I,  p.  459,  note. 


The  Federal  System  of  Government  i6i 

citizenship,  however,  do  not  descend  to  children  whose  fathers 
never  resided  in  the  United  States.^ 

Foreigners  may  be  admitted  to  citizenship  by  naturalization, 
either  collectively  or  individually.  Collective  naturalization 
may  occur  when  a  foreign  territory  and  its  inhabitants  are  trans- 
ferred to  the  United  States.  The  manner  of  this  naturaUzation 
is  generally  stipulated  in  the  terms  of  the  treaty  of  transfer. 
For  example,  the  treaty  with  France  ceding  the  Louisiana  terri- 
tory provided  that  the  inhabitants  of  the  territory  should  be 
incorporated  into  the  Union  of  the  United  States  and  admitted 
as  soon  as  possible,  according  to  the  principles  of  the  federal 
Constitution,  to  the  enjoyment  of  all  the  rights,  advantages,  and 
immunities  of  citizens  of  the  United  States.^ 

The  process  of  naturahzing  individuals  is  subject,  in  all  of  its 
details,  to  the  laws  of  Congress,  and  it  is  committed  to  the  charge 
of  certain  specified  courts."  NaturaUzation  can  be  effected  only 
in  a  circuit  or  district  court  of  the  United  States,  or  a  district  or 
supreme  court  of  a  territory,  or  a  court  of  record  of  a  state  hav- 
ing law  or  equity  jurisdiction  in  cases  in  which  the  amount  in 
controversy  is  unUmited,  and  having  a  seal  and  a  clerk.*  Only 
white  persons  and  persons  of  African  descent  may  be  natu- 
rahzed;  the  Chinese  are  excluded  expressly  by  law,  and  this  ex- 
clusion has  been  extended  to  the  Japanese  on  the  ground  that 
they  are  not  white  persons. 

The  process  of  naturalization  falls  into  three  stages:  (i)  At 
least  two  years  prior  to  his  admission,  the  alien  (who  must  be 
at  least  eighteen  years  of  age)  makes  a  declaration  on  oath  before 
the  clerk  of  a  court  stating  his  intention  to  become  a  citizen 
and  renouncing  his  allegiance  to  any  foreign  power.  (2)  Not 
less  than  two  years  nor  more  than  seven  years  after  this  declara- 
tion (and  after  five  years'  residence  in  the  United  States),  the 
ahen  must  file  in  his  own  handwriting  his  petition  for  citizen- 
ship, stating  that  he  is  not  opposed  to  organized  govern- 
ment, is  not  a  polygamist,  intends  to  become  a  citizen,  and 

'  Readings,  p.  150. 

2  See  Moore,  Digest  of  International  Law,  Vol,  III,  p.  276. 

'  Under  the  general  supervision  of  the  Bureau  of  Immigration  and  Natu- 
ralization in  the  Department  of  Commerce  and  Labor  at  Washington. 

*  There  are  about  3500  courts  which  have  power  to  issue  naturalization 
papers  under  the  law  of  1906. 

M 


1 62  American  Government  and  Politics 

renounces  his  allegiance  to  his  former  country.  This  petition 
must  be  verified  by  the  affidavits  of  two  citizens  certifying  to  the 
residence  and  good  moral  character  of  the  applicant.^  (3)  After 
ninety  days  have  elapsed  from  the  date  of  filing  the  petition, 
the  appHcation  is  heard  by  the  court.  The  appUcant  renews 
his  adherence  to  the  declarations  made  in  the  petition,  and  is 
then  examined  by  the  court.  This  examination  may  be  formal 
or  thorough  and  searching,  according  to  the  standards  of  the 
judge  conducting  the  final  hearing.  Examining  judges  are  re- 
quired to  satisfy  themselves  that  all  the  provisions  of  the  law  have 
been  complied  with,  that  the  applicant  has  behaved  as  a  man  of 
good  moral  character,  is  attached  to  the  principles  of  the  Con- 
stitution of  the  United  States,  and  well  disposed  to  the  good  order 
and  happiness  of  the  same.  When  the  court  is  duly  satisfied 
the  certificate  of  naturalization  is  issued.  A  large  power  of  dis- 
crimination, is  thus  conferred  upon  the  court,  and  there  are  some 
instances  of  its  being  abused  by  judges  personally  opposed  to  the 
political  principles  expressed  by  the  alien  applicants. 

The  original  constitution  contained  no  positive  provisions 
relating  to  the  right  to  vote,  but  left  the  question  to  the  states  for 
solution  by  stipulating  that  voters  for  members  of  the  House  of 
Representatives  should  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  state  legislature, 
and  at  the  same  time  permitting  the  state  legislatures  to  decide 
how  presidential  electors  should  be  chosen.^  Accordingly  there 
does  not  exist  in  the  United  States,  as  in  Germany,  a  national 
suffrage  distinct  from  the  suffrage  of  the  respective  states.  Thus 
matters  stood  until  the  close  of  the  Civil  War,  when  the  Repub- 
lican party  sought  to  secure  its  supremacy  and  enable  the  newly 
emancipated  negro  to  protect  himself  against  his  former  master 
by  forcing  the  adoption  of  the  Fourteenth  and  Fifteenth  amend- 
ments. 

The  effect  of  these  provisions,  however,  was  not  to  create  one 
uniform  suffrage  throughout  the  Union,  but  to  leave  the  regula- 
tion of  the  matter  to  the  states,  subject  to  the  provision  that 

^  An  applicant  must  reside  at  least  a  year  in  the  state  or  territory  in  which 
he  makes  application.  If  he  landed  after  June  29,  1906,  he  must  present  a 
certificate  from  the  Department  of  Commerce  and  Labor  showing  date 
of  arrival,  and  the  declaration  of  intention  must  be  filed  with  the  petition. 

^  Senators  of  the  United  States  were  to  be  chosen  by  the  state  legislatures. 


The  Federal  System  of  Government  163 

"when  the  right  to  vote  at  any  election  for  the  choice  of  electors 
for  President  and  Vice-President  of  the  United  States,  Represen- 
tatives in  Congress,  the  executive  and  judicial  officers  of  a  state 
or  the  members  of  the  legislature  thereof,  is  denied  to  any  of 
the  male  inhabitants  of  such  states,  being  twenty-one  years  of 
age,  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebelHon,  or  other  crime,  the  basis  of 
representation  therein  shall  be  reduced  in  the  proportion  which 
the  number  of  such  male  citizens  shall  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in  such  states";  and  to 
the  further  provision  that  the  right  of  citizens  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  state  on 
account  of  race,  color,  or  pre\dous  condition  of  servitude. 

Notwithstanding  these  provisions,  a  uniform  manhood  suffrage 
has  not  been  adopted  throughout  the  United  States.  In  four 
states,  women  are  admitted  to  the  suffrage;  in  others  tax,  edu- 
cational, property,  and  other  qualifications  are  imposed;  and  in 
several  states  we  have  the  peculiar  anomaly  of  foreigners,  who 
have  announced  their  intention  of  becoming  citizens,  being 
permitted  to  vote  for  state  and  even  national  officers.^ 

The  various  restrictions  operate  in  -such  a  manner  as  to 
exclude  thousands  of  adult  male  citizens,  and  they  are  by  no 
means  confined  to  the  South.  Massachusetts  with  an  educa- 
tional test,  or  Pennsylvania  with  a  tax  qualification,  is  legally 
quite  as  liable  to  a  reduction  of  representation  as  any  southern 
state  with  a  "grandfather"  clause  in  its  constitution.  Never- 
theless, no  serious  attempt  has  yet  been  made  to  secure  an  en- 
forcement of  the  Fourteenth  Amendment.  The  Republican 
party,  although  pledged  in  the  platforms  of  1904  and  1908  to 
an  execution  of  the  constitutional  provision  in  question  and  in 
control  of  all  branches  of  the  federal  government,  has  deemed 
it  inexpedient  to  carry  out  its  campaign  promises.^ 

'  See  Readings,  p.  143,  and  below,  chap.  xxii. 

^  For  the  Republican  platform  of  1908,  see  Readings,  pp.  107  ff .  Undoubt- 
edly there  would  be  great  difficulty  in  ascertaining  the  number  of  voters 
actually  disfranchised  by  any  qualifications. 


164  American  Government  and  Politics 

Jhe  Supremacy  of  the  Jtidiciary  * 

The  crowning  feature  of  the  federal  system  is  the  supremacy 
of  the  judiciary  over  all  other  branches  of  government  in  matters 
relating  to  the  rights  of  persons  and  property.  In  no  other 
nation,  federal  or  centraUzed  in  form  of  government,  is  the  high 
authority  of  declaring  null  and  void  the  acts  of  other  departments 
conferred  upon  a  judicial  tribunal.  This  judicial  supremacy, 
says  Professor  Burgess,  is  "the  most  momentous  product  of  mod- 
ern political  science.  Upon  it  far  more  than  upon  anything 
else  depends  the  permanent  existence  of  republican  government; 
for  elective  government  must  be  party  government  —  majority 
government;  and  unless  the  domain  of  individual  liberty  is  pro- 
tected by  an  independent,  unpolitical  department,  such  govern- 
ment degenerates  into  party  absolutism  and  then  into  Caesar- 
ism."  2 

It  is  the  Supreme  Court,  therefore,  that  stands  as  the  great 
defender  of  private  property  against  the  attempts  of  popular 
legislatures  to  enroach  upon  its  fundamental  privileges,.  This 
fact  has  been  so  clearly  and  cogently  demonstrated  by  President 
Hadley  that  his  statements  deserve  quotation  at  length.  The 
theoretical  position  of  property-holders,  he  says,  —  "the  sum  of 
the  conditions  which  affect  their  standing  for  the  long  future  and 
not  for  the  immediate  present  —  is  far  stronger  in  the  United 
States  [than  in  other  countries].  The  general  status  of  the 
property-owner  under  the  law  cannot  be  changed  by  the  action 
of  the  legislature,  or  the  executive,  or  the  people  of  a  state  voting 
at  the  polls,  or  all  three  put  together.  It  cannot  be  changed 
without  either  a  consensus  of  opinion  among  the  judges,  which 
should  lead  them  to  retrace  their  old  views,  or  an  amendment  of 
the  Constitution  of  the  United  States  by  the  slow  and  cumber- 
some machinery  provided  for  that  purpose,  or,  last,  —  and  I  hope 
most  improbable,  —  a  revolution. 

"  When  it  is  said,  as  it  commonly  is,  that  the  fundamental 
division  of  powers  in  the  modern  State  is  into  legislative,  execu- 
tive, and  judicial,  the  student  of  American  institutions  may  fairly 
note  an  exception.     The  fundamental  division  of  powers  in  the 

^  See  below,-  chap.  xv. 

^  Political  Science  Quarterly,  Vol.  X,  p.  422. 


The  Federal  System  of  Government  165 

Constituticm  of  the  IJnited  States  is  between  voters  on  the  one 
hand'and  property-owners  on  the  other.  The  forces  of  democ- 
racy on  one  side,  divided  between  the  executive  and  the  legisla- 
ture, are  set  over  against  the  forces  of  property  on  the  other  side, 
with  the  judiciary  as  arbiter  between  them;  the  Constitution 
itself  not  only  forbidding  the  legislature  and  executive  to  trench 
upon  the  rights  of  property,  but  compelling  the  judiciary  to 
define  and  uphold  those  rights  in  a  manner  provided  by  the  Con- 
stitution itself. 

"This  theory  of  American  politics  has  not  often  been  stated. 
But  it  has  been  universally  acted  upon.  One  reason  why  it  has 
not  been  more  frequently  stated  is  that  it  has  been  acted  upon 
so  universally  that  no  American  of  earher  generations  ever 
thought  it  necessary  to  state  it.  It  has  had  the  most  funda- 
mental and  far-reaching  effects  upon  the  policy  of  the  country. 
To  mention  but  one  thing  among  many,  it  has  allowed  the  experi- 
ment of  universal  suffrage  to  be  tried  under  conditions  essen- 
tially different  from  those  which  led  to  its  ruin  in  Athens  or  in 
Rome.  The  voter  was  omnipotent  —  within  a  limited  area. 
He  could  make  what  laws  he  pleased,  as  long  as  those  laws  did 
not  trench  upon  property  right.  He  could  elect  what  officers 
he  pleased,  as  long  as  those  officers  did  not  try  to  do  certain 
duties  confided  by  the  Constitution  to  the  property-holders."  * 

^  The  Independent,  April  16,  1908. 


CHAPTER  IX 

THE  NOMINATION  AND  ELECTION  OF  THE  PRESIDENT 

The  framers  of  the  federal  Constitution  intended  to  remove 
the  office  of  chief  magistrate  of  the  RepubUc  as  far  as  possible 
from  the  passions  and  interests  of  the  masses,  and  accordingly 
they  provided  for  his  election  by  a  small  body  of  electors  chosen 
as  the  legislatures  of  the  several  states  might  determine.  The 
original  design  has  been  upset,  however,  by  the  rise  of  poHtical 
parties.  It  is,  therefore,  necessary  to  preface  a  discussion  of 
the  legal  provisions  regarding  the  election  of  the  President 
by  a  consideration  of  the  extra-legal  organization  which 
selects  the  candidate  for  whom  the  electors  of  each  party  are 
morally  bound  to  vote. 

Preliminaries  to  the  National  Convention 

The  national  convention  assembles  on  a  call  issued  by  the 
national  committee.  A  meeting  of  this  committee  is  held  usually 
five  or  six  months  before  the  time  for  making  presidential  nomi- 
nations. At  this  preliminary  meeting,  summoned  by  the  call 
of  the  chairman,  the  place  at  which  the  coming  convention  is  to 
be  held  is  selected  after  the  representatives  of  various  cities  have 
presented  their  claims,  and  the  date  for  the  opening  of  the  great 
party  assembly  is  fixed.  When  the  national  committee  has 
thus  decided  upon  the  place  and  date  of  the  convention,  it  issues 
a  call  to  the  party  members  and  supporters  inviting  them  to 
choose  delegates  and  alternates,  so  that  the  party  conference 
may  be  a  representative  body.^ 

On  the  eve  of  the  convention,  the  national  committee  assem- 
bles to  complete  preparations.  At  this  session,  the  programme 
of  proceedings  is  determined  upon  and  the  temporary  roll  of 
delegates  is  made  up  from  the  returns. 

The  national  convention  is  composed  of  delegates  from  the 

^  For  Republican  and  Democratic  "calls,"  see  Readings,  p.  i6i. 
i66 


The  Nomination  and  Election  of  the  President      167 

states  and  territories.*    Every  commonwealth  is  allowed  two  ■ 
delegates  for  each  of  its  Senators  and  Representatives  in  the  | 
Congress  of  the  United  States/  For  example,  New  York  has  two  \ 
Senators  and  thirty-seven  Representatives  —  thirty-nine  in  all  ; 
—  and  it  is  entitled  to  seventy-eight  members  in  the  national 
convention.     The  four  delegates  corresponding  to  the  represen- 
tation of  the  state  in  the  United  States  Senate  are  known  as 
delegates-at-large,  and  the  others  are  called  district  delegates.* 
In  addition  to  the  regular  delegates,  there  is  an  equal  number  of 
alternates,  chosen  in  the  same  manner,  and  authorized  to  serve 
in  case  the  former  are  prevented  from  attending. 

In  prescribing  the  methods  of  electing  delegates,  the  calls  of 
the  Democratic  and  Republican  parties  differ  fundamentally. 
The  former  regards  the  state  as  the  unit  of  representation,  and 
leaves  it  entirely  free  to  decide  how  the  delegates  shall  be  chosen. 
The  Democratic  delegates  apportioned  to  any  commonwealth, 
therefore,  may  be  selected  entirely  by  the  state  convention,  or 
by  a  combination  of  district  and  state  conventions.^  The  Re- 
publican party,  on  the  other  hand,  definitely  stipulates  that  the 
delegates-at-large  shall  be  chosen  at  the  state  convention  and 
the  other  delegates  at  congressional  district  conventions.  Special 
provisions  are  made  for  the  territories,  and  for  the  states  that 
prescribe  nomination  by  direct  primaries.^ 

The  purpose  of  the  national  convention  is  threefold.  It-V 
formulates  the  principles  of  the  party  into  a  platform  on  which  / 
the  appeal  is  made  to  the  voters  during  the  ensuing  campaign./ 

I 

*  The  number  of  delegates  assigned  to  the  territories  and  dependencies 
varies  from  convention  to  convention.  For  example,  the  District  of  Colum- 
bia was  allowed  by  the  national  committee  four  delegates  in  the  Republican 
convention  of  1904  and  two  in  1908. 

2  It  should  be  noted  that  according  to  this  rule  party  strength  is  not  repre- 
sented at  all.  For  example,  in  1904,  Mississippi,  in  which  there  were  only 
3168  Republican  voters,  sent  20  delegates  to  the  Republican  convention,  and 
Michigan,  with  216,651  Republican  voters,  sent  only  22  delegates.  This,  of 
course,  helps  to  prevent  each  party  from  becoming  sectional  in  character.  If 
is  partially  offset  by  the  Democratic  rule  requiring  a  two-thirds  vote  to 
nominate.     Below,  p.  172. 

^  That  is,  of  course,  where  delegates  are  chosen  by  districts. 

*  Readings,  p.  168. 

"  See  Readings,  p.  161,  for  details  as  to  methods  of  electing  delegates,  and 
below,  chap,  xxx,  for  direct  primaries. 


1 68  American  Government  and  Politics 

It  nominates  candidates  for  the  presidency  and  the  vice-presi- 
dency, and  appoints  committees  to  notify  both  nominees. 
Finally  it  organizes  a  new  national  committee  charged  with 
carrying  on  the  campaign  and  acting  for  the  party  for  four  years 

,  —  until  the  next  national  convention  is  held. 

i 

The  National  Convention  at  Work 

The  convention  usually  assembles  in  some  enormous  building 
where  the  thousand  delegates,  and  perhaps  eight  or  ten  thousand 
spectators,  are  seated.  Each  delegation  is  arranged  around  the 
banner  of  its  state,  and  has  a  chairman  to  direct  its  part  in  the 
convention.  Some  of  the  more  important  delegations  are 
accompanied  by  brass  bands,  and  often  carry  curious  symbols 
and  transparencies.  In  the  audience  are  usually  gathered  the 
most  active  politicians  who  are  not  serving  as  delegates,  enthu- 
siastic partisans  from  all  over  the  country,  and  interested  visitors 
attracted  by  the  spectacular  affair.  It  is  indeed  a  cool-headed 
politician  who  is  not  swept  off  his  feet  by  the  excitement  of  the 
hour.  Bands  play  popular  airs;  party  heroes  are  greeted  with 
prolonged  cheering  as  they  appear  on  the  scene;  wire-pullers 
rush  here  and  there  among  the  delegations  making  and  extract- 
ing promises;  all  are  apparently  intoxicated  with  enthusiasm 
and  boisterous  party  zeal. 

The  convention  is  called  to  order  by  the  chairman  of  the 
national  committee,^  and  before  any  business  is  transacted,  prayer 
is  usually  offered.  Clergymen  from  different  congregations  are 
chosen  for  the  several  sessions,  so  as  to  avoid  offending  religious 
susceptibilities.  The  first  business  is  the  reading  of  the  call  for 
the  national  convention  by  the  secretary  of  the  committee,  and 
the  chairman  then  puts  in  nomination  the  temporary  officers, 
who  have  been  selected  by  the  committee  before  the  meeting. 
Usually  these  nominations  are  accepted  without  question,  for  the 
business  of  the  temporary  organization  is  largely  formal.  The 
temporary  chairman,  it  is  true,  makes  an  address  appropriate 
to  the  occasion,  which  is  often  regarded  as  the  "keynote"  to 
the  proceedings,  but  he  is  not  called  upon  to  make  any  important 
decisions  from  the  chair  which  may  affect  either  the  platform  of 

*  The  order  of  business,  of  course,  varies  from  time  to  time  £n  details, 
but  this  general  description  is  substantially  true  of  all  conventions. 


The  Nomination  and  Election  of  the  President      169 

the  party  or  its  nominations.  When  the  temporary  ofl&cers  are 
duly  installed  and  the  speech  of  the  chairman  is  delivered,  the 
rules  of  the  previous  convention  are  adopted  until  the  perma- 
nent organization  is  effected.  The  first  day's  session  is  then 
concluded  by  calHng  the  roll  of  the  states  and  territories,  each 
one  of  which  appoints  one  member  for  each  of  four  great  commit- 
tees of  the  convention:  the  committee  on  credentials,  the  com- 
mittee on  permanent  organization,  the  committee  on  rules  and 
order  of  business,  and  the  committee  on  resolutions  or  platform. 

After  the  second  session  of  the  convention  is  called  to  order 
by  the  temporary  chairman,  the  reports  of  the  various  commit- 
tees are  heard,  not  necessarily  in  any  fixed  order.  The  committee 
on  credentials  is  charged  with  the  important  work  of  deciding 
questions  of  contested  seats.  All  notices  of  contests  between 
delegations  are  filed  in  advance  with  the  national  committee 
which  makes  up  the  temporary  roll.  These  documents  relative 
to  the  several  disputes  are  passed  on  to  the  credentials  committee,  1 
which  holds  meetings  and  prepares  reports  for  the  convention. 
Sometimes  these  contests  are  very  exciting;  for  the  poHcy  of 
the  party  on  national  issues  and  the  fate  of  candidates  may  be 
decided  by  the  admission  or  rejection  of  certain  delegations. 
Generally  speaking,  however,  the  report  of  the  majority  of  the 
committee  on  credentials  is  accepted  by  the  convention.^ 

The  next  important  report  is  that  of  the  committee  on  perma-  ~1 
nent  organization,  which  names  the  permanent  chairman,  the  / 
secretary,  and  other  officers  of  the  convention.  This  report  is 
also  generally  approved  without  debate,  but  there  have  been 
occasions  on  which  the  convention  has  refused  to  accept  the 
nominees  of  the  committee.  The  permanent  chairman  is  duly 
installed,  makes  a  long  speech,  and  is  presented  with  a  gavel. 
The  rules,  under  which  he  controls  the  assembly,  are  reported 
by  the  committee  on  rules,  and  are,  in  principle,  those  of  the 
House  of  Representatives  with  some  modifications.  The  chair- 
man is  constantly  called  upon  to  decide  points  of  order  of  a  highly 
technical  nature;  he  must  prevent  the  convention,  which  some- 
times bursts  out  into  storms  of  applause  lasting  more  than  an 
hour,  from  degenerating  entirely  into  an  uncontrolled  mob; 

*  It  sometimes  happens  that,  to  avoid  open  rupture,  both  delegations  from 
a  state  are  admitted  —  each  member  having  one-half  of  a  vote. 


170  American  Government  and  Politics 

he  is  often  compelled  to  choose  from  among  five  or  ten  speakers 
trying  to  get  the  floor  at  the  same  time;  and  it  is,  therefore,  im- 
portant that  he  should  be  master  of  the  rules  of  procedure,  and 
capable  of  prompt  and  firm  decision. 

On  the  second  or  third  day,  the  convention  is  ready  for  the 
report  of  the  committee  on  resolutions,  which  is  charged  with 
drafting  the  platform.  This  committee  begins  its  sessions  im- 
mediately after  its  appointment,  and  usually  agrees  on  a  unani- 
mous report,  but  sometimes  there  is  a  minority  report.  The 
platform  is  not  often  a  statement  of  the  particular  things  which 
the  party  proposes  to  do  if  it  gets  into  power;  it  is  rather  a  col- 
lection of  nice  generahties  which  will  serve  to  create  good  feehng 
and  unite  all  sections  around  the  party  standard.  It  usually 
contains,  among  other  things,  references  to  the  great  history  of 
the  party,  interspersed  with  the  names  of  party  leaders,  and 
denunciations  of  the  policies  and  tactics  of  the  opposite  party. 
Frequently  a  platform  will  refer  to  matters  that  do  not  concern 
American  politics  primarily,  such  as  the  persecution  of  the  Jews 
in  Russia  or  the  struggle  of  Ireland  for  home  rule.  Such  resolu- 
tions do  not  imply  that  the  government  can  or  will  do  anything 
positive  on  such  matters,  but  they  serve  to  appeal  to  the  imagi- 
nation and  sympathies  of  certain  classes  of  voters.  The  report 
of  the  committee  on  resolutions  seldom  meets  opposition  in  the 
convention,  for  care  is  taken  by  the  committee  to  placate  all 
elements.  It  is  only  when  there  is  some  very  contentious  matter, 
such  as  the  free  silver  issue  in  1896,  that  there  is  likely  to  be  a 
divided  report  from  the  committee  or  any  debate  on  the  floor. 
'  After  the  adoption  of  the  platform,  the  new  national  committee 
is  chosen.* 

About  the  third  or  fourth  day,  the  chairman  announces  that 
the  next  order  of  business  is  the  caUing  of  the  roll  of  the  states  for 
the  presentation  of  names  of  the  candidates  for  President  of  the 
United  States,  and  the  roll  is  called  in  alphabetical  order  begin- 
ning with  Alabama.  If  a  state  has  no  candidate  to  present,  it 
may  defer  to  another  further  down  on  the  list.  This  is  what 
happened  in  both  conventions  in  1904.  When  Alabama  was 
called  upon  in  the  Republican  assembly,  the  chairman  of  the 
delegation  said:  "The  State  of  Alabama  requests  the  privilege 

^  See  below,  p.  173. 


The  Nomination  and  Election  of  the  President      171 

and  distinguished  honor  of  yielding  its  place  upon  the  roll  to  the 
State  of  New  York."  A  representative  of  the  state  which  is  thus 
named  thereupon  places  a  candidate  in  nomination,  in  a  speech 
full  of  high-sotmding  phrases  and  lofty  sentiments.^  The  first 
speech  may  be  followed  by  speeches  seconding  the  nomination, 
from  the  representatives  of  various  delegations  scattered  over  the 
House,  if  the  chairman  sees  fit  to  recognize  them.-  The  nomina- 
tions may  be  closed  without  calling  the  full  roll  of  the  states,  or 
the  calling  of  the  roll  may  be  resumed  and  each  state  heard  from, 
as  it  is  reached  in  regular  order. 

When  the  nominations  are  made,  the  vote  is  taken  by  calling    ;' 
the  roll  of  the  delegations,  and  the  chairman  of  each  announces    [ 
the  vote  of  his  group.  According  to  the  theory  of  the  Republican    ' 
party,  each  member  of  a  delegation  may  cast  his  vote  as  he 
pleases,  although  as  a  matter  of  fact  the  delegations  are  often 
instructed  by  the  conventions  of  the  states  from  which  they  come. 
The  Democratic  party,  however,  does  not  recognize  the  right  of 
the  individual  to  vote  as  he  pleases  in  the  convention.     It  not 
only  permits  the  state  convention  to  instruct  its  delegates,  but 
also  authorizes  the  majority  in  each  delegation  to  determine 
how  the  entire  vote  shall  be  cast  —  and  cast  that  vote  as  a  unit.^ 
For  example,  the  state  of  New  York  has  seventy-eight  representa- 
tives in  the  national  convention,  and  if  forty  of  the  delegates 
agree  on  the  same  candidate,  the  vote  of  the  entire  number  is 
cast  for  him. 

This  practice,  which  is  called  the  appUcation  of  the  "unit 
rule,"  is  justified  by  Democratic  leaders  on  the  ground  thatlHe 
state,  not  the  congressional  district,  is  the  unit  of  representation; 
and  that  greater  weight  is  given  to  the  delegation  of  a  state,  in 
negotiating  with  the  other  delegations,  by  reason  of  the  fact  that 
it  can  cast  the  entire  number  of  votes.  That  is,  on  account  of 
his  abihty  to  deliver  the  entire  vote  of  the  New  York  delegation, 
the  leader  of  that  state,  for  example,  is  able  to  demand  more  con- 
sideration in  the  distribution  of  poHtical  favors  than  if  he  could 
only  deliver  a  portion  of  the  vote.  The  unit  rule,  therefore, 
gives  more  power  to  the  organization  of  the  state  than  the  system 
of  allowing  divided  delegations.     It  should  be  noted,  however, 

'  See  Readings,  p.  164,  for  an  extract  from  a  nominating  speech. 

'  This  is,  of  course,  usually  fixed  up  in  advance.        ^  See  Readings,  p.  167. 


172  American  Government  and  Politics 

that  the  unit  rule  is  not  applied  to  all  state  delegations  in  the 
Democratic  convention.  It  is  left  to  the  states  concerned  to 
adopt  or  reject  the  principle  as  they  see  fit;  but  if  the  state  does 
not  act  in  the  matter,  the  national  convention  applies  the  rule. 

When  the  roll  of  all  the  states  and  territories  has  been  called, 
and  the  vote  of  each  one  has  been  registered  by  the  tally  clerks, 
the  total  result  is  announced.  If  any  nominee  in  the  RepubUcan 
convention  receives  a  majority  of  all  the  votes  cast,  he  is  there- 
upon declared  the  candidafe  of  the  party  for  the  presidency  of 
the  United  States.  In  the  Democratic  convention,  however,  it 
is  an  inflexible  rule  that  the  successful  nominee  must  receive  a 
majority  of  two-thirds  —  that  is,  out  of  the  1000  delegates  in 
the  Democratic  convention  of  1904  in  St.  Louis,  667  were  neces' 
sary  to  a  choice.  If  no  nominee  receives  the  requisite  majority  on 
the  first  ballot,  the  process  is  repeated  until  some  one  secures 
the  proper  number  of  votes.  It  is  the  practice  of  both  parties, 
immediately  after  the  nomination  of  the  presidential  candidate, 
to  nominate  the  candidate  for  Vice-President  in  the  same  manner. 

When  the  convention  has  chosen  its  candidates,  a  separate 
committee  is  appointed  to  convey  to  each  of  them  a  formal  noti- 
fication. Shortly  afterward  the  notification  committee  waits 
upon  the  candidate,  and  through  an  official  spokesman  announces 
the  will  of  the  party.  The  candidate  thereupon  replies  in  a 
lengthy  address,  and  sometimes  follows  this  by  a  special  letter 
of  acceptance.  The  acceptance  speech  is  often  an  important 
campaign  document  for  the  reason  that  the  candidate  may 
interpret  the  platform  of  his  party  in  his  own  way,  going  even  so 
far  as  to  modify  the  spirit,  if  not  the  letter,  of  that  pronuncia- 
mento.  For  example,  Mr.  Taft  in  his  acceptance  speech  of  1908 
elaborated  at  length  the  Chicago  platform  and  committed  himself 
personally  to  many  doctrines  which  had  not  been  specifically 
endorsed  at  the  convention  which  nominated  him. 

The  National  Committee 

The  great  work  of  directing  the  campaign  is  intrusted  to  the 
national  committee,*  composed,  in  the  RepubUcan  and  Demo- 
cratic parties,  of  one  member  from  each  state  and   territory 

*  In  practice,  the  burden  falls  upon  the  officers  and  an  executive  committee 
of  the  national  committee. 


The  Nomination  and  Election  of  the  President     173 

chosen  by  the  respective  delegations  to  the  national  convention, 
and  holding  office  for  four  years,  that  is,  from  one  national  con- 
vention to  the  next.  The  selection  of  this  committee,  as  we  have 
seen,  is  a  part  of  the  regular  convention  proceedings.  Usually 
on  the  second  or  third  day,  after  the  adoption  of  the  platform 
and  before  the  nomination  of  the  candidates,  the  permanent 
chairman  of  the  national  convention  announces  that  the  next 
order  of  business  is  the  calUng  of  the  roll  of  the  states  and  terri- 
tories for  the  presentation  of  names  of  persons  chosen  to  serve 
on  the  national  committee.  In  common  practice  the  secretary 
of  the  convention  has  in  advance  a  full  report  of  the  names  of 
the  members  chosen  from  each  state  and  territory,  and  this 
report  being  read  to  the  convention  is  accepted  as  it  stands, 
unless  objections  are  made  from  the  floor.  The  national  con- 
vention, as  such,  therefore,  does  not  exercise  any  control  over  the 
choice  of  members  of  the  national  committee.  The  selection  of 
its  representative  is  left  to  each  state,  and  is  frequently  deter- 
mined by  a  caucus  among  the  party  leaders  in  advance. 

The  principal  officers  of  the  national  committee  are  the  chair- 
man, secretary,  and  treasurer.  The  chairman,  who  is  by  far  the 
most  important  poUtical  leader  in  the  national  organization,  is 
the  choice  of  the  candidate  for  President.  The  wishes  of  the 
committee  and  other  leaders  of  the  party,  are,  of  course,  taken 
into  consideration.  This  power  of  selecting  the  chairman  is  very 
important  to  the  presidential  nominee,  because  the  immediate 
task  of  that  officer  is  to  conduct  the  presidential  campaign,  and 
it  is  essential  that  he  and  the  candidate  work  together  in  complete 
harmony.  The  chairman  is  not  necessarily  a  member  of  the 
original  committee,  for  it  may  so  happen  that  no  prominent 
and  energetic  organizer  has  been  chosen  by  the  state  and  terri- 
torial delegations.  The  secretary  and  treasurer  are  sometimes 
appointed  by  the  chairman, -and  sometimes  by  the  committee. 
The  treasurer  is  often  not  a  member  of  the  committee;  owing  to 
his  important  position  as  collector  of  campaign  funds,  he  is  se- 
lected for  his  financial  ability  and  influence  from  among  the  most 
available  members  of  the  party.  Of  course,  it  is  impossible  here 
to  lay  down  any  absolute  rules  in  regard  to  the  way  in  which 
officials  of  the  committee  are  chosen,  for  the  choice  is  not  deter- 
mined under  any  written  or  unwritten  law,  but  is  left  for  adjust- 
ment according  to  circumstances. 


174  American  Government  and  Politics 

The  National  Campaign 

Immediately  after  the  adjournment  of  the  convention,  the 
newly  elected  committee  meets  and  proceeds  with  the  prepara- 
tions for  the  campaign.  The  leadership  in  this  great  national 
contest  is  taken  of  course  by  the  chairman/  who  disburses  enor- 
mous simis  of  money  collected  by  the  treasurer,  directs  the  huge 
army  of  speakers,  organizers,  and  publicity  agents  scattered  over 
the  Union,  and  as  the  day  of  election  approaches  surveys  the 
whole  field  with  the  eye  of  an  experienced  general,  discovering 
weak  places  in  his  battle  array,  hurrying  up  reinforcements  to 
the  doubtful  states,  and,  perhaps,  pouring  an  immense  sum  of 
money  into  districts  where  large  numbers  of  wavering  voters  may 
be  brought  into  line.  The  outcome  of  the  campaign,  therefore, 
depends  in  a  great  measure  upon  the  generalship  of  the  chairman 
of  the  national  committee.  ^ 

Quite  as  important  as  the  general  who  leads  the  army  in  the 
field,  is  the  organizer  of  the  department  which  furnishes  the  sinews 
of  war.  Consequently,  in  a  political  campaign,  the  treasurer  of 
the  national  committee  takes  a  prominent  place  by  the  side  of 
the  chairman.  It  is  his  business  to  discover  innumerable  ways 
of  raising  the  million  dollars  or  more  required  to  wage  the  great 
political  contest.^  In  this  work  he  is,  of  course,  greatly  assisted 
by  the  issues  of  the  campaign;  for,  when  large  business  interests 
are  liable  to  be  affected  by  the  outcome  of  the  election,  he  can 
appeal  with  special  force  to  those  whose  fortunes  are  linked  to 
the  fate  of  his  party.  It  is,  therefore,  apparent  why  the  treasurer 
of  the  national  committee  should  be  a  financier  of  peculiar  genius, 
and  a  man  influential  in  wealthy  circles;  and  for  this  reason  an 
eminent  business  man  is  usually  chosen  to  fill  this  high  post. 

The  campaign  of  1888  affords  a  remarkable  example  of  the 
intimate  relation  between  the  finances  of  a  party  and  the  in- 
terests affected  by  the  outcome  of  the  election.  Moreover,  a  very 
frank  statement  made  by  the  treasurer  for  that  year,  Mr.  Wana- 
maker,  gives  us  an  insight  into  his  reasons  for  undertaking  the 
management  of  Republican  finances,  and  the  methods  which  he 


*  Readings,  p.  169. 

^  According  to    official  statements,  the   Republican  national    commit:tee 
raised  $1,035,368.27  in  1908  and  the  Democratic  conmaittee  $620,150. 


The  Nomination  and  Election  of  the  President     175 

employed.^  Mr.  Wanamaker,  according  to  his  own  account, 
had  had  large  experience  in  raising  money  for  the  Young  Men's 
Christian  Association  and  other  similar  organizations;  and  ac- 
cordingly he  knew  how  to  bring  arguments  to  bear  upon  large- 
minded  men.  The  strong  pronunciamento  in  favor  of  free  trade, 
made  by  Mr.  Cleveland  in  a  message  to  Congress,  had  frightened 
business  men  engaged  in  industries  fostered  by  the  protective 
tariff,  and  of  this  situation  Mr.  Wanamaker  was  quick  to  take 
advantage.  He  said  it  was  his  custom  to  address  business  men 
as  follows:  ''How  much  would  you  pay  for  insurance  upon  your 
business?  If  you  were  confronted  with  from  one  year  to  three 
years  of  general  depression  by  a  change  in  our  revenue  and  pro- 
tective measures  affecting  our  manufactures,  wages,  and  good 
times,  what  would  you  pay  to  be  insured  for  a  better  year?  "  The 
argument  was  pecuharly  effective,  for  money  was  raised  in  such 
large  amounts  that  the  Democrats  were  completely  outwitted; 
and  when  election  was  over,  the  national  committee,  according 
to  Mr.  Wanamaker's  statement,  was  ready  to  make  him  almost 
any  offer.  He  chose  the  office  of  Postmaster-General,  and  en- 
tered the  Cabinet  of  the  President  whom  he  had  done  so  much  to 
elect. 

A  second  instance  of  powerful  support  given  by  financial  in- 
terests to  a  poHtical  party  is  afforded  by  the  campaign  of  1896, 
when  the  question  of  free  silver  was  the  leading  issue.  Bankers, 
men  of  finance,  creditors,  and  business  men  generally,  believed 
that  the  adoption  of  free  coinage  of  silver  at  the  ratio  of  16  to  i 
would  be  absolutely  disastrous  to  them.  Accordingly,  they 
ralUed  to  the  support  of  the  Republican  party.  On  March  23, 
1896,  before  the  conventions  of  the  two  parties  met,  the  American 
Bankers'  Association  sent  out  a  letter  to  the  bankers  of  the  United 
States,  declaring  unequivocally  in  favor  of  the  maintenance  of  the 
existing  gold  standard,  and  recommending  to  all  customers  of 
banks  the  exercise  of  all  their  influence,  as  citizens  in  the  various 
states,  to  secure  the  selection  of  delegates  to  the  political  conven- 
tions of  both  parties,  who  would  stand  squarely  in  favor  of  the 
gold  standard. 

After  the  conventions  were  held,  and  the  two  great  parties  were 
divided  on  the  money  question,  a  committee  was  appointed  to 

»  The  Forum,  Vol.  XIV,  pp.  29  fF. 


176  American  Government  and  Politics 

solicit  funds  in  aid  of  the  campaign  for  the  Republicans.  In  a 
circular  letter  sent  out  in  September,  this  committee  stated  that 
the  banks  in  New  York  and  some  other  places  had  been  contrib- 
uting on  a  basis  of  one-fourth  of  one  per  cent  of  their  capital  and 
surplus;  and  urged  other  banks  to  follow  this  example,  on  the 
ground  that  it  was  proper  and  legitimate  for  the  banks  to  make 
political  contributions  in  a  campaign  so  vital  to  all  financial 
institutions.^ 

The  actual  methods  employed  by  the  parties  in  influencing 
voters  vary  of  course  from  time  to  time;  new  expeciients  for 
attracting  the  attention  of  the  people  are  constantly  being  de- 
vised. Nevertheless,  we  can  draw  from  a  study  of  the  methods 
of  recent  campaigns  certain  general  practices  which  the  parties 
adopt  to  accomplish  their  ends. 
,  H  The  first  important  step  in  the  campaign  is  the  location  of  the 

[T^^^g^rty  headquarters  from  which  the  contest  is  to  be  directed. 
IJ^    The  strategic  value  of  putting  the  centre  of  the  campaign  near  or 
in  the  doubtful  states  was  recognized  by  the  Republicans  in  1896, 
when  they  selected  Chicago  as  the  point  from  which  the  militant 
forces  in  the  field  were  controlled.     It  is  not  always  the  rule, 
however,  to  maintain  one  centre,  for  in  the  campaign  of  1900 
the  Republicans  divided  their  national  headquarters  into  two 
branches  —  one  at  New  York  and  one  at  Chicago. 
*    Since  the  chief  work  of  the  national  committee  in  carrying  on 
thb  campaign  is  to  influence  the  minds  of  the  voters,  its  attention 
is  given  in  a  very  systematic  way  to  the  preparation  of  the  cam- 
paign literature.     As  soon  as  the  issues  of  the  campaign  are 
pretty  well  settled,  each  party  publishes  a  campaign  text-book^ 
.     which  usually  contains  the  platform,  notification  and  acceptance 
I    speeches,  biographical  sketches  of  the  candidates,  statistics  on 
I    business,  tariff,  trusts,  money,  and  other  economic  issues,  ad- 
\  dresses  by  prominent  leaders,  papers  in  defence  or  criticism  of 
\  the  administration,  and  the  most  cogent  arguments  which  the 
\  party  can  advance  in  support  of  its  position.     The  campaign 
text-books  are  sent  out  in  large  quantities,  not  to  the  pubUc 
generally,  but  especially  to  the  newspapers,  speakers,  and  others 

^  The  evidence  for  these  statements  is  in  the  Congressional  Record,  Vol.  XL, 
part  vi,  pp.  5336  £f.  In  1907  Congress  passed  an  act  forbidding  corporations 
to  make  contributions  to  campaign  funds  in  federal  elections. 


The  Nomination  and  Election  of  the  President      177 

in  a  position  to  influence  voters  by  argument.  In  addition  to 
the  regular  campaign  text-book  there  is  usually  a  text-book  issued 
by  the  congressional  committee  ^  which  contains  additional  in- 
formation on  the  "records"  of  the  parties  and  their  poHcies. 

These  central  pieces  of  campaign  literature  are  supplemented 
by  innumerable  pamphlets,  leaflets,  posters,  cartoons,  and  con- 
gressional speeches,  printed  in  every  language  that  is  represented 
by  any  considerable  number  of  voters.  A  regular  bureau  of  print- 
ing and  publication  under  the  supervision  of  an  expert  directs 
this  enormous  "  literary  "  output,  which  is  distributed  broadcast, 
very  often  through  the  state  central  committees.  It  was  esti- 
mated that  the  Republican  committee  in  1896  sent  out  about 
20,000  express  packages,  5000  freight  packages,  and  probably 
half  a  million  packages  by  mail.^ 

A  far  more  effective  way  of  reaching  the  public  at  large  is  \fji^ 

through  the  newspaper.     Thousands  of  the  uninteresting  docu-     

ments  sent  out  by  the  national  committee  are  doubtless  thrown 
away  unopened  or  unread,  and  there  must  be  an  enormous  waste 
of  this  branch  of  the  campaign  work.  The  newspapers,  however, 
which  have  regular  readers,  reach  the  public  more  directly;  and 
accordingly  the  national  committee  does  all  that  it  can  through 
the  estabUshed  newspapers,  from  the  great  city  daily  with  its 
huge  editions,  down  to  the  rural  weekly  with  a  circulation  (Si 
five  hundred  printed  on  a  hand-press.  It  was  estimated  that  trfe 
Republican  national  committee,  in  1896,  reached  five  miflion 
families  every  week  with  newspapers  containing  RepubHcan  ar- 
guments.^ ^  ^  _^^ 

In  addition  to  the  printed  arguments  addressed  to  the  people,  ^^' 
there  are  oral  arguments  made  by  campaign  speakers.  The 
national  committee  generally  has  a  bureau  of  public  speakers 
which  prepares  a  list  of  available  orators  by  testing  applicants 
and  drafting  volunteers,  and  directs  the  speakers  in  the  field  by 
placing  them  in  positions  where  their  special  talents  may  be  most 
effective.  These  orators  are  of  every  rank,  from  the  man  with  the 
strong  voice  who  can  harangue  a  crowd  on  the  street  corner, 
to  the  finished  speaker  whose  very  name  will  draw  thousands. 

*  See  above,  p.  133. 

^  Review  of  Reviews,  Vol.  XIV,  pp.  533  ff. 

^  For  this  topic  and  an  excellent  account  of  the  campaign  of  1896,  see  Read* 
ings,  pp.  171  fif. 


178  American  Government  and  Politics 

Hundreds  of  these  speakers  are  directed  from  headquarters,  and 
thousands  of  local  volunteers  are  enlisted  by  state  and  county 
committees,  sometimes  in  consultation  with  the  authorities  higher 
up.  Itineraries  are  laid  out,  halls  and  bands  engaged,  parades 
organized,  and  every  step  taken  to  make  the  oratorical  effort 
of  the  greatest  possible  effect.  According  to  one  estimate, 
for  several  weeks  preceding  the  election  of  1900,  seven  thou- 
sand Republican  speeches  were  made  every  week  day  and 
night.* 

Sometimes  the  presidential  candidates  themselves  enter  the 
lists.  Mr.  Bryan,  for  example,  in  1896,  toured  the  United  States 
in  a  private  car,  delivering  no  less  than  four  hundred  reported 
speeches  in  twenty-nine  different  states,  thus  making  undoubt- 
edly the  greatest  oratorical  record  of  any  candidate  up  to  that 
campaign.  Sometimes  the  candidate  does  not  travel  about,  but 
contents  himself  with  remaining  at  home  and  addressing  crowds 
that  are  brought  from  far  and  near  on  railway  excursions.  In 
this  way,  Mr.  McKinley  did  effective  work  at  his  home  in  Can- 
ton, Ohio,  in  1896.  In  1908  Mr.  Taft  is  reported  to  have  jour- 
neyed 18,500  miles  and  to  have  made  436  campaign  speeches 
in  thirty  different  states;  and  Mr.  Bryan  at  least  equalled  his 
first  record. 

A  very  practical  and  indispensable  part  of  the  national  com- 
mittee's work  is  the  poUing  of  doubtful  states.  Early  in  the 
campaign  a  political  census  is  taken  of  those  states  in  which  the 
vote  has  been  known  to  vacillate  from  campaign  to  campaign, 
and  every  pains  is  taken  to  make  this  census  complete  and  ac- 
curate by  sparing  no  cost  in  selecting  and  paying  reliable  and 
efficient  canvassers.  Thus  the  party  has  a  fairly  accurate  knowl- 
edge of  the  number  of  votes  upon  which  it  can  rely,  and  also  a 
fairly  accurate  list  of  the  number  of  doubtful  persons  whose  votes 
may  be  influenced  by  various  means.  With  the  results  of  this 
great  political  census  of  the  uncertain  states  in  its  hands,  the  na- 
tional committee  is  very  much  in  the  position  of  a  military  staff, 
on  the  field  of  battle,  which  is  acquainted  with  the  numerical 
strength  of  the  opposing  army,  the  weak  points  in  its  equipment 
and  defence,  and  the  necessary  lines  of  advance  for  winning  vic- 
tory.   The  effective  means  for  influencing  the  several  categories 

^  Review  of  Reviews,  Vol.  XXII,  pp.  549  ff. 


The  Nomination  and  Election  of  the  President      179 

of  doubtful  persons  are  immediately  despatched  to  the  scene  of 
action.  Two  weeks  before  election  day  in  1896,  the  Republicans, 
fearing  the  loss  of  Iowa,  made  a  canvass  of  every  doubtful  voter 
in  that  state,  by  sending  a  zealous  and  tactful  Republican  to  each 
one.  This  detailed  and  effective  canvass  is  reported  to  have 
cost  over  $200,000.^ 

It  is  indeed  a  marvellous  contest  that  closes  on  the  day  when 
the  ballots  of  more  than  fourteen  milUon  voters  are  cast  for  the 
presidential  electors  in  the  several  states. - 

Casting  and  Counting  the  Electoral  Votes 

The  political  activities  described  above — important  as  they  are 
in  the  selection  of  the  President  and  Vice-President  —  are  wholly 
unknow^n  to  the  Constitution.  That  document,  in  fact,  contains 
but  very  few  clauses  with  regard  to  the  actual  choice  of  the  Presi- 
dent and  Vice-President.^  In  the  first  place  it  contemplates  a 
system  of  indirect  election:  each  state  shall  appoint,  in  such 
manner  as  the  legislature  thereof  may  direct,  a  number  of 
electors  equal  to  the  number  of  Senators  and  Representatives  to 
which  the  commonwealth  is  entitled  in  Congress.  To  remove 
the  electors  from  any  direct  contact  with  the  federal  governmentj_ 
it  was  added  that  no  Senator  or  Representative  or  a  person  hold- 
ing any  office  of  trust  under  the  United  States  should  be  appointed 
an  elector.  "  ^ 

It  is  to  be  noted  that  the  electors  of  each  state  are  to  be  chosen 
as  the  legislature  thereof  may  determine.  In  the  course  of  our 
history  no  less  than  three  distinct  methods  have  been  devised, 
(i)  In  the  beginning,  it  was  often  the  practice  for  the  state  legis- 
atures  to  choose  the  electors;  but  within  a  quarter  of  a  century 
the  majority  of  them  had  abandoned  this  practice  in  favor  of 
popular  election.  {lY^here  this  more  democratic  system  was 
adopted  it  was  oft^  the  custom  at  first  to  have  two  electors 
chosen  by  the  voters  of  the  state  at  large  and  the  remaining 
electors  chosen  by  congressional  districts  —  thus  each  voter  would 
have  the  right  to  vote  for  three  electors,  two  at  large  and  one  from 

>  World's  Work,  Vol.  I,  p.  77. 

'  The  Tuesday  following  the  first  Monday  in  November  was  fixed  by 
Congress  in  1845. 
'  Readings,  p.  154. 


1 


i8o  American  Government  and  Politics 

his  own  district/  (3)  It  was  at  length  discovered  that  a  state's  in- 
fluence in  national  politics  was  greatly  increased  if  all  of  its  elec- 
tors could  be  carried  by  one  party  or  the  other,  and  consequently 
the  system  of  election  by  district  has  been  abandoned,  in  favor  of 
election  by  general  ticket  throughout  the  state  at  large. ^ 

It  is  necessary,  accordingly,  for  each  party  in  each  state  to 
prepare  a  Hst  of  candidates  equal  to  the  total  number  of  electors 
to  which  that  particular  commonwealth  is  entitled.  In  practice, 
the  presidential  electors  are  generally  chosen  by  the  state  con- 
vention of  the  party,  and  very  often  the  office  of  elector  is  re- 
garded as  a  titular  honor  to  be  given  to  distinguished  citizens  or 
to  partisans  wilUng  to  make  Uberal  contributions  to  campaign 
funds. 

On  election  day,  therefore,  the  voter  ^  does  not  vote  directly 
for  President  and  Vice-President,  although  for  his  information 
the  names  of  the  candidates  of  all  parties  appear  on  the  ballot. 
On  the  contrary,  if  he  votes  a  straight  ticket,  he  simply  votes  for 
the  entire  list  of  electors  put  forward  by  his  party.  There  is  no 
point  at  all  in  splitting  the  vote  for  presidential  electors,  unless 
there  is  a  fusion,  such  as  existed  for  example  in  some  of  the  western 
states  between  the  Democrats  and  PopuHsts  whereby  each  of  the 
two  groups  was  to  have  a  certain  share  of  the  electors  according 
to  a  predetermined  arrangement.  What  happens,  therefore,  on 
a  general  presidential  election  day  is  the  choice  in  each  state  of  a 
certain  number  of  presidential  electors  —  483  in  all.  Nornially 
the  party  which  secures  a  pluraHty  of  votes  in  any  state  is 
entitled  to  all  of  the  electoral  votes  of  that  state  for  President 
and  Vice-President,  no  matter  how  large  the  minority.^  No 
elector  would  dare  to  break  faith  with  the  party  which  placed 
liim  in  nomination,  and  vote  for  the  candidates  of  the  opposite 
party.     Consequently,   the  deliberative,  judicial,  non-partisan 

'  "In  1824,  twenty-four  states  took  part  in  the  election.  In  six,  the  electors 
were  chosen  by  the  legislatures  and  in  eighteen  by  popular  vote,  and  of 
these  in  thirteen  by  general  ticket  and  by  districts  in  five.  .  .  .  South 
Carolina  continued  the  practice  of  legislative  appointment  until  i860." 
Finley  and  Sanderson,  The  American  Executive,  p.  332. 

^  In  1892  Michigan  temporarily  reverted  to  the  district  system.  See 
Readings,  p.  157. 

'  On  the  suffrage,  see*below,  chap.  xxii. 

*  There  have  been  a  few  instances  of  split  electoral  tickets  —  California 
and  Kentucky  in  1896  and  Maryland  in  1908,  for  example. 


The  Nomination  and  Election  of  the  President      i8i 

system  designed  by  the  framers  of  the  Constitution  has  been 
overthrown  by  party  practice. 

It  is  sometimes  held  that  through  this  party  practice  we  have 
secured  popular  election  of  President  and  Vice-President,  but  if  we 
mean  by  popular  election,  choice  by  majority  or  plurality  vote 
throughout  the  United  States,  it  has  not  been  attained  as  yet. 
Indeed,  several  of  our  Presidents  have  been  elected  by  a  minority 
of  the  popular  vote.  Mr.  Lincoln,  for  example,  was  chosen  Presi- 
dent in  'i860  by  a  vote  of  1,866,452  against  a  total  of  2,815,617 
polled  by  all  of  his  opponents  —  the  large  opposition  vote  being 
so  divided  and  scattered  as  to  elect  less  than  a  majority  of  the 
total  number  of  electors.  And  two  Presidents,  Hayes  and  Har- 
rison, did  not  even  receive  a  plurality. 

This  possible  contingency  of  election  by  a  minority  of  the  popu- 
lar vote  cast  is  due  to  the  fact  that  when  a  party  carries  a  state, 
no  matter  by  how  slight  a  margin,  it  secures  all  of  the  presiden- 
tial electors  to  which  that  commonwealth  is  entitled.  A  party, 
therefore,  that  wins,  although  by  narrow  margins,  in  a  sufficient 
number  of  states  to  obtain  a  majority  of  the  electors  may  in  fact 
poll  a  smaller  number  of  votes  than  the  opposing  party  which  may 
have  carried  its  states  by  enormous  majorities. 

The  practice  of  giving  the  entire  electoral  vote  of  a  state  to  the 
party  that  has  won  at  the  polls,  even  by  the  slightest  majority,  has 
another  significant  effect.  It  concentrates  the  campaign  prin- 
cipally in  the  states  that  are  counted  as  "close"  and  are  Hable  to 
swing  to  either  party  in  the  election.  The  importance  of  carry- 
ing these  pivotal  states  leads  campaign  managers  to  employ  in 
each  of  them  every  art  of  winning  votes  known  to  practical  poli- 
tics. For  example,  the  narrow  margin  of  1,149  votes  in  New 
York,  in  1884,  gave  that  state  to  Mr.  Cleveland  instead  of  Mr. 
Blaine,  and  changed  the  result  of  the  presidential  election. 
The  Republican  national  chairman  in  the  campaign  of  1888, 
remembering  the  lesson  of  the  preceding  election,  threw  a  force 
of  detectives  in  New  York  City  to  check  false  registration  and 
illegal  voting,  with  results  which  more  than  exceeded  his  expec- 
tations. This  concentration  of  the  campaign  in  the  pivotal 
states  has  many  bad  features,  especially  the  lavish  use  of  money 
for  questionable  purposes.  It  is  a  notorious  fact  that  in  the 
states  in  which  the  rivalry  between  the  parties  is  keenest,  there 
is  the  largest  amount  of  bribery.    On  the  other  hand,  the  system 


1 82  American  Government  and  Politics 

works  for  "  cleaner  "  politics  in  states  where  one  party  is  certain 
to  win,  since  no  advantage  can  come  from  piling  up  votes. 

The  methods  by  which  the  electors  so  chosen  in  each  state  shall 
meet  and  cast  their  votes  are  prescribed  in  the  Constitution  and 
in  federal  and  state  statutes.  It  is  provided  by  federal  law  that 
the  electors  of  each  commonwealth  shall  convene  on  the  second 
Monday  of  January,  immediately  following  their  appointment 
at  such  place  as  the  legislature  of  the  state  may  direct — in  prac- 
tice, the  state  capital.  When  they  have  assembledj^the  electors 
vote  by  ballot  for  President  and  Vice-President,  "one  of  whom 
at  least  must  not  be  an  inhabitant  of  the  same  state  with  them- 
selves"—  that  is,  for  the  two  candidates,  nominated  by  their 
party;  and  they  thereupon  make  distinct  Usts  of  the  number  of 
votes  so  cast,  and  sign,  certify,  seal,  and  transmit  the  lists  to 
the  president  of  the  Senate  of  the  United  States.  With  the  lists 
of  their  votes  for  President  and  Vice-President,  the  electors  must 
transmit  their  certificates  of  election  as  evidence  of  their  power 
to  act  —  evidence  of  crucial  importance  in  case  of  contested 
elections.  When  they  have  cast  their  votes  and  transmitted 
their  documents  according  to  law,  the  electors  have  performed 
their  whole  duty.  They  are  not  paid  by  the  federal  government, 
but  are  regarded  as  state  officers,  and  must  look  to  the  state 
legislature  for  remuneration  for  their  services.^ 

The  counting  of  the  total  electoral  vote  polled  throughout  the 
United  States  ^  begins  in  the  Hall  of  the  House  of  Representatives 
on  the  second  Wednesday  in  February,  following  the  meeting 
of  the  electors  in  their  respective  states.  It  is  conducted  in  the 
presence  of  the  Senate  and  the  House  of  Representatives  with 


*  Readings,  p.  i6o. 

^  The  constitutional  clauses  relative  to  counting  the  electoral  vote  do  not 
provide  for  cases  of  disputed  returns  from  the  several  states,  and  in  1876  a 
grave  crisis  arose  on  account  of  frauds  and  irregularities  in  several  of  the 
commonwealths.     The  Senate  was  Republican  and  supported  the  Republican 
candidate,  Mr.  Hayes;  and  the  House  was  Democratic  and  favored  the  Demo- 
cratic candidate,  Mr.  Tilden.       A  deadlock  occurred  and  Congress  found  a 
way  out  by  creating  an  electoral  commission  of  five  Senators,  five  Represent 
tives,  and  five  Supreme  Court  Justices.     On  all  important  matters  the  eigl 
Republicans  on  the  commission  voted  together,  and  declared  Mr.  Hayfl 
elected.     See  P.  L.  Haworth,  The  Disputed  Election.     In  1887   Congress, 
an  act,  provided  for  settling  such  disputes.   For  the  details,  see  the  act  in  Stai 
wood,  Presidential  Elections,  p.  453. 


The  Nomination  and  Election  of  the  President      183 

the  president  of  the  Senate  in  the  chair.  Two  tellers  are  ap- 
pointed by  the  Senate  and  two  by  the  House  of  Represen- 
tatives. The  certificates  and  documents  are  opened  by  the 
president  of  the  Senate,  taking  the  states  in  alphabetical  order 
beginning  with  Alabama,  and  thereupon  handed  to  the  tellers 
who  read  the  same  and  list  the  votes.  The  candidates  having 
the  greatest  number  of  votes  for  President  and  Vice-President 
respectively,  if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed,  are  declared  duly  elected.  Except  in  cas6  x 
of  a  contested  election,  this  count  is,  of  course,  merely  an  im-^  )^ 
pressive  formality,  for  the  result  is  ordinarily  known  three 
months  before. 

In  case  no  candidate  for  President  receives  a  majority  of  all 
the  electoral  votes  cast,  the  House  of  Representatives  thereupon 
chooses  the  President  by  ballot  from  the  three  candidates  who 
have  received  the  highest  number  of  votes.  It  should  be  noted, 
however,  that,  in  selecting  the  President,  each  state  represented 
in  the  House  is  entitled  to  only  one  vote;  a  quorum  consists  of 
the  members  from  two- thirds  of  the  states;  and  a  majority  of 
all  the  states  is  necessary  to  choice.  Accordingly,  the  vote  of 
each  state  for  the  presidential  candidate  must  be  determined  by 
the  majority  of  the  Representatives  of  the  Commonwealth  in  the 
House.  In  case  of  the  failure  of  the  House  to  choose  a  President 
(whenever  the  election  devolves  upon  that  body)  before  the  fourth 
of  March  following,  it  becomes  the  duty  of  the  Vice-President 
to  act  as  President. 

There  have  been  only  two  instances  of  presidential  elections 
by  the  House  of  Representatives  —  Jefferson  in  1801  and  J.  Q. 
Adams  in  1825.  This  is  due,  of  course,  to  the  fact  that  we 
have  two  great  political  parties  somewhat  equally  balanced.  If 
the  voters  were  broken  into  several  parties  the  election  would 
almost  invariably  devolve  upon  the  House. 

Whenever  no  candidate  for  Vice-President  receives  a  majority 
of  all  the  electoral  votes,  the  election  is  thrown  into  the  Senate, 
and  the  Senators  voting  as  individuals  must  choose  the  Vice- 
President  from  the  jtwo  candidates  having  the  highest  number 
jof  votes.  Two- thirds  of  the  whole  number  of  the  Senators  con- 
stitute a  quorum  for  this  purpose,  and  a  majority  of  the  whole 
number  is  necessary  to  a  choice. 

The  qualifications  for  President  are  stated  in  the  Constitution. 


184  American  Government  and  Politics 

He  must  be  a  natural-bom  citizen,  at  least  thirty-five  years  old, 
and  must  have  been  fourteen  years  a  resident  within  the  United 
States.  The  same  qualifications  apply  to  the  Vice-President, 
The  term  is  fixed  at  four  years,  and  so  far  as  the  Constitution  is 
concerned,  the  President  or  Vice-President  may  be  reelected 
indefinitely.^ 

To  these  constitutional  requirements,  a  third  has  been  added 
by  political  practice:  no  person  is  eligible  to  the  office  of  Presi- 
dent for  more  than  two  terms,  at  least,  in  succession.  Tliis 
"third  term  doctrine,"  as  it  is  called,  is  supposed  to  rest  upon  the 
example  set  by  Washington  in  declining  reelection  at  the  expira- 
tion of  eight  years'  service.  Tradition  has  it  that  Washington 
acted  on  principle,  but  this  seems  to  have  slight  historical  foun- 
dation.^ He  did  not  share  Jefferson's  decided  ideas  on  rotation 
in  office,  and  there  is  apparently  no  reason  for  believing  that 
he  objected  to  a  President's  serving  three  terms  or  more.  In 
fact,  his  farewell  address  is  filled  with  reasonable  excuses  why  he 
in  particular  ought  not  to  be  charged  with  lack  of  patriotism  or 
neglect  of  duty  in  refusing  to  serve  for  another  term.  Jefferson 
originally  beUeved  that  the  President  should  have  been  given  a 
seven  years'  term,  and  then  made  ineligible  for  reelection.' 
Later,  however,  he  came  to  the  conclusion  that  service  for  eight 
years  with  the  possibility  of  removal  at  the  end  of  four  years  was 
nearer  the  ideal  arrangement.  He,  accordingly,  followed  the 
example  set  by  Washington,  and  thus  the  third  term  doctrine 
early  received  such  high  sanction  that  it  became  a  political  dogma 
almost  as  inviolable  as  an  express  provision  of  the  Constitution. 


*  In  case  of  the  death  or  resignation  of  the  President,  the  Vice-President 
succeeds.  By  statute  Congress  provided,  in  1886,  that  in  case  of  the  death  or 
resignation  of  both  the  President  and  Vice-President  the  following  officers 
shall  serve,  in  the  order  mentioned:  Secretary  of  State,  of  the  Treasury,  of 
War,  the  Attorney-General,  the  Postmaster-General,  the  Secretary  of  the 
Navy,  and  of  the  Interior. 

2R.   S.   Rantoul,  in  The    Essex  Institute    Historical    Collections,   Vol. 
XXXVII,  p.  321  (1901). 
'  Readings,  p.  70. 


The  Nomination  and  Election  of  the  President     185 

The   Inauguration 

It  was  formerly  the  practice  for  Congress,  after  having  made 
the  official  count,  to  select  a  committee  for  the  purpose  of  notify- 
ing the  new  President  of  his  election,  but  this  was  not  uniformly 
followed,  and  has  now  been  abandoned  altogether.  Curiously 
enough  no  official  notice  whatever  is  given  to  the  President-elect. 
He  is  supposed  to  be  sufficiently  aware  of  the  fact  himself,  and 
on  the  fourth  of  March  he  appears  to  take  the  oath  of  office.  He 
usually  arrives  in  Washington  a  few  days  before,  and  calls  upon 
the  retiring  President,  to  pay  his  respects.  On  the  day  of  inaugu- 
ration, the  President-elect,  in  charge  of  a  committee  on  cere- 
monies, is  conducted  to  the  White  House,  whence,  accompanied 
by  the  President,  he  is  driven  to  the  Capitol.  Unless  the  weather 
prevents,  the  oath  of  office,  administered  by  the  Chief  Justice 
of  the  United  States,  is  taken  in  the  open  air  upon  the  platform 
built  for  the  special  purpose  at  the  east  front  of  the  Capitol.^ 
Following  the  example  set  by  Washington,  it  is  the  practice  of 
the  President  to  deliver  an  inaugural  address  setting  forth  his 
policy.  After  the  administration  of  the  oath  of  office,  the  new 
President  is  driven  back  to  the  White  'House,  where,  from  a  re- 
viewing-stand,  he  surveys  a  long  procession,  which  is  usually 
hours  in  filing  past. 

As  soon  as  the  new  President  has  been  installed,  he  is  confronted 
with  the  problem  of  selecting  his  Cabinet  and  of  filUng  a  large 
number  of  minor  places  which  are  either  vacant  or  whose  occu- 
pants are  ousted  for  one  reason  or  another.^  It  is  quite  common 
for  the  President  to  select  for  the  post  of  Secretary  of  State  the 
member  of  his  party  who  is  generally  deemed  to  be  next  to  him- 
self in  the  esteem  of  the  country.  For  example,  Mr.  Lincoln 
called  to  the  State  Department  Mr.  Seward,  who  had  been  his 
chief  rival  for  nomination  at  the  convention  of  i860  in  Chicago. 
Sometimes  the  new  President  rewards  with  Cabinet  positions 
the  men  who  have  been  especially  prominent  in  securing  his 
election.  For  example,  Mr.  Harrison  appointed  Mr.  John 
Wanamaker,  who  had  been  treasurer  of  the  Republican  campaign 

*  If  the  weather  prevents  the  open-air  ceremony,  the  oath  is  taken  in  the 
Senate  chamber. 

^  Of  course,  many  appointments  are  decided  upon  long  before  inauguration. 


1 86  American  Government  and  Politics 

committee,  to  the  office  of  Post  master- General;  and  Mr.  Taft 
rewarded  with  the  same  office  Mr.  Hitchcock,  who  was  chairman 
of  the  national  committee  during  his  campaign.  Though  as  a 
rule  the  President  confines  his  appointments  to  members  of  his 
own  party,  he  sometimes  chooses  members  of  the  opposition  who 
have  been  lukewarm  in  their  poHtical  activity.  Furthermore, 
in  making  appointments  to  Cabinet  positions  the  President 
usually  attempts  to  have  the  different  parts  of  the  country 
fairly  well  represented.  In  all  cases,  he  is  supposed  to  select 
men  with  whom  he  can  work  harmoniously  and  who  are  willing 
to  carry  out  the  main  lines  of  his  policy.  While  the  Cabinet 
officer's  nomination  must  be  confirmed  by  the  Senate,  as  a  matter 
of  practice,  the  Senate  always  accepts  the  President's  selection,  so 
that  in  a  very  peculiar  sense  the  Cabinet  may  be  regarded  as  his 
personal  retinue  on  whom  he  can  depend  for  cooperation  and 
advice  in  making  his  administration  successful. 


CHAPTER  X 

THE  POWERS  or  THE  PRESIDENT 

The  functions  of  the  President  are  prescribed  by  the  Consti- 
tution, but  his  real  achievements  are  not  set  by  the  letter  of  the 
law.  They  are  determined  rather  by  his  personahty,  the  weight 
of  his  influence,  his  capacity  for  managing  men,  and  the  strength 
and  effectiveness  of  the  party  forces  behind  him.  As  chief 
executive,  he  operates  through  a  vast  and  complicated  official 
hierarchy  centering  at  Washington  and  ramifying  throughout 
the  great  American  empire  and  even  into  foreign  countries 
through  the  diplomatic  and  consular  services.  As  poKtical 
leader  he  may  use  his  exalted  position  to  appeal  to  the  nation  — 
to  sectional,  class,  or  group  interests;  he  may  use  his  veto 
power  against  laws  passed  by  Congress,  he  may  agitate  by  means 
of  his  messages,  and  he  may  bring  pressure  to  bear  in  Congress 
and  within  his  party  through  the  discriminating  use  of  the  federal 
patronage.  Thus  it  happens  that  we  do  not  have  the  whole 
office  of  President  before  us  when  we  are  in  the  presence  of  the 
Constitution  and  statutes  of  the  United  States. 

The  President  as  Director  of  the  Administration 

The  President  is  the  head  of  the  national  administration.  It 
is  his  duty  to  see  that  the  Constitution,  laws,  and  treaties  of  the 
United  States,  and  judicial  decisions  rendered  by  the  federal 
courts  are  duly  enforced  everywhere  throughout  the  United 
States.  In  the  fulfilment  of  this  duty,  he  may  direct  the  heads  of 
departments  and  their  subordinates  in  the  discharge  of  the 
functions  vested  in  them  by  the  acts  of  Congress.  The  exact 
degree,  however,  to  which  he  may  control  an  administrative 
officer  is  frequently  a  subject  of  pohtical  controversy,  and  cannot 
be  set  down  with  precision;  it  depends  more  upon  the  personality 
of  the  President  than  upon  any  theories  of  constitutional  law.^ 

'  The  President's  power  of  direction  is  a  product  of  historical  development. 
It  does  not  necessarily  inhere  in  the  Constitution.  This  power,  according  to 
Professor  Goodnow,  is  "hardly  recognized,  m  the  Constitution.    The  only 

187 


1 88  American  Government  and  Politics 

Some  of  the  departments,  however,  are  made  more  directly 
subject  to  the  President's  control  than  others.  For  example, 
the  Secretary  of  State,  in  the  conduct  of  foreign  affairs,^  is  com- 
pletely subject  to  the  President's  orders;  and  the  Attorney- 
General  must  give  an  opinion  or  institute  proceedings  when 
required.  On  the  other  hand,  when  the  Treasury  was  organized 
in  1789,  it  was  definitely  understood  that  Congress  had  a  special 
control  over  the  administration  of  that  Department.^ 

The  Supreme  Court  has  held  that  the  President  is  bound  to 
see  that  an  administrative  officer  faithfully  discharges  the  duties 
assigned  by  law,  but  is  not  authorized  to  direct  the  officer  as  to 
the  ways  in  which  they  shall  be  discharged.^  Nevertheless,  the 
President  has  the  power  to  remove  the  head  of  a  department  who 
refuses  to  obey  his  orders,  and  it  is,  therefore,  rather  difficult 
to  see  why,  in  actual  practice,  he  cannot  determine,  within  the 
lines  of  the  statutes,  the  general  policy  to  be  followed  by  that 
officer.  When  President  Jackson  wanted  the  government  funds 
withdrawn  from  the  United  States  Bank,  he  removed  two  Secre- 
taries of  the  Treasury,  and  finally  appointed  a  third  who  was 
known  to  be  subservient  to  his  will.    He  had  his  way  in  the  end. 

The  President  also  possesses  a  large  ordinance  power j—  that 
is,  authority  to  supplement  statutes  by  rules  and  regulations 

provisions  from  which  it  may  be  derived  are  those  which  impose  upon  him 
the  duty  to  see  that  the  laws  be  faithfully  executed,  and  permit  him  to '  require 
the  opinion  in  writing  of  the  principal  officer  in  each  of  the  executive  depart- 
ments upon  any  subject  relating  to  the  duties  of  their  respective  offices, 
but  perusal  of  the  early  acts  of  Congress  organizing  the  administrative  sys- 
tem of  the  United  States  will  show  that  the  first  Congress  did  not  have  the 
idea  that  the  President  had  any  power  of  direction  over  matters  not  political 
in  character.  .  .  .  The  act  organizing  the  Treasury  Department  contains 
no  reference  to  any  presidential  power  of  direction.  It  simply  says  that  the 
Secretary  of  the  Treasury  shall  generally  perform  all  such  services  relative  to 
the  finances  as  he  shall  be  directed  to  perform,  and  the  context  shows  that 
reference  is  made  to  the  direction  of  Congress,  not  to  that  of  the  President.  .  .  . 
The  result  of  our  national  administrative  development  has  been  thus  a  great 
enlargement  of  the  American  conception  of  the  executive  power."  Princi- 
ples of  the  Administrative  Law  of  the  United  States,  pp.  77  flf.  For  another 
view  of  the  President's  administrative  power,  see  Readings,  p.  177. 

'  Readings,  p.  200. 

*  See  below,  p.  210. 

'  This  was  an  early  case;  Kendall  v.  United  States,  12  Peters,  524  (1838). 
It  is  doubtful  whether  this  view  would  be  taken  to-day. 


The  Powers  of  the  President  189 

covering  matters  of  detail  sometimes  of  very  great  importance. 
Among  other  things,  he  makes  rules  for  the  army  and  navy,  the 
patent  ofl&ce,  the  customs,  internal  revenue,  consular  and  civil 
services.  Sometimes  he  issues  these  rules  in  accordance  with 
provisions  of  the  statutes  and  sometimes  under  his  general  execu- 
tive power.  Many  of  the  army  regulations  he  promulgates  as 
commander-in-chief.  When  he  makes  rules  for  the  civil  service, 
he  acts  under  specific  provisions  of  the  civil  service  law.  Thus 
under  his  power  to  remove,  to  see  to  the  faithful  execution  of  the 
laws,  and  to  issue  ordinances,  the  President  enjoys  an  adminis- 
trative authority  of  no  mean  dimensions.^ 

As  chief  executive  the  President  may  instruct  the  Attorney- 
General  to  institute  proceedings  against  any  one  suspected  of 
violating  federal  law,  and  in  case  of  open  resistance  he  may 
employ  the  armed  force  of  the  United  States.  Laxness  or 
severity  in  law  enforcement  is,  therefore,  largely  within  his 
discretion. 

The  Power  of  Appointment  and  Removal 

In  connection  with  his  administrative  functions,  the  Presi- 
dent may  nominate  a  large  number  of  federal  officers.  This 
is  important  from  the  point  of  view  of  politics,  as  well  as 
administration. 

When  considered  in  relation  to  the  manner  of  their  selection, 
the  civil  authorities  of  the  United  States  —  other  than  the 
President,  Vice-President,  presidential  electors.  Senators  and 
Representatives  —  fall  into  two  groups:  (i)  those  officers  whose 
appointment  is  vested  by  the  Constitution  or*  by  act  of  Con- 
gress in  the  President  and  Senate;  and  (2)  those  "  inferior " 
officers,  estabUshed  by  law,  whose  appointment  is  vested  by 
Congress  in  the  President,  the  courts  of  law,  or  the  heads  of 
departments.^ 

The  first  group  embraces  most  of  the  important  subordinate 
officers  of  the  federal  government,  —  the  heads  of  departments, 
most  of  the  bureau  chiefs,  judges  of  the  inferior  federal  courts, 
many  commissioners,  such  as  the  civil  service  and  interstate 
commerce  commissioners,  revenue  officers,  and  postmasters  in 

'  Fairlie,  National  Administration,  pp.  i6  ff. 

^  Each  house  of  Congress,  of  course,  controls  the^appointment  of  its  own 
officers  —  except  the  presiding  officer  of  the  Senate. 


190  American  Government  and  Politics 

large  cities  and  towns.  Taken  together,  they  constitute  an 
official  army,  whose  salaries  aggregate  more  than  $12,000,000 
a  year.  In  filling  these  positions,  the  President  and  Senate  are 
not  hampered  by  any  rules  regarding  qualifications;  and  as 
most  of  these  officers  hold  for  a  term  of  four  years,  either 
under  the  Tenure  of  Office  Act  of  1820^  or  by  other  acts  or 
practice,  their  appointment  gives  to  each  incumbent  of  the 
presidential  office  the  disposal  of  an  enormous  amount  of 
patronage. 

The  right  of  Congress  to  determine  what  is  an  "  inferior  " 
ofiice  has  never  been  questioned,  but  no  very  consistent  rule 
has  been  adopted  in  this  matter.  A  few  bureau  chiefs  of  great 
importance  —  principally  in  the  Department  of  Agriculture  — 
are  "  inferior  "  officers  in  the  view  of  the  law  because  their 
appointment  is  vested  in  the  President  or  in  the  head  of  the 
department.  On  the  other  hand  many  bureau  chiefs  are 
appointed  by  the  President  and  Senate.  The  Librarian  of 
Congress  is  appointed  by  the  President  alone;  and  the  great 
horde  of  clerks  and  minor  officers  are  chosen  by  heads  of 
departments. 

The  offices  to  be  filled  by  the  President  and  Senate  may  be 
divided  into  groups  according  to  the  degree  of  freedom  which 
the  President  enjoys  in  making  his  own  selections.^ 

I.  Members  of  the  Cabinet,  that  is,  heads  of  departments,  are 
usually  the  President's  personal  selection,  although  in  this  matter 
he  is  often  controlled  by  preelection  promises  or  by  obligations 
incurred  in  engaging  the  active  support  of  certain  prominent  men 
in  his  party.  At  all  events,  the  Senate,  even  when  it  is  in  the 
hands  of  an  opposition  party,  does  not  seek  to  control  the  ap- 
pointments to  these  offices;  it  usually  ratifies  the  President's 
nominations  promptly  and  without  objections.     The  choice  of 

^  Congress,  by  this  act  passed  in  1820,  fixed  the  term  of  a  large  number  of 
federal  officers  at  four  years  subject  to  the  President's  removal  power.  The 
officer  holding  one  of  these  positions  is  not  guaranteed  a  four-year  term,  but 
jnayiaeremaved-by  the  President  at  will.  Finley  and  Sanderson,  The  Amer- 
ican Executive,  p.  258.  Federal  Judges,  of  course,  hold  ofl&ce  during  good 
behavior. 

2  It  should  be  noted  that,  under  the  Constitution,  the  President  may  fill 
vacancies  occurring  during  a  recess  of  the  Senate  by  granting  commissions 
which  expire  at  the  end  of  the  next  session  of  that  body.  See  Ford,  Rise 
and  Growth  of  American  Politics,  p.  290. 


The  Powers  of  the  President  191 

diplomatic  representatives  is  also  left  largely  to  the  President's 
discretion,  as  far  as  the  Senate  is  concerned;  although  he  often 
has  many  party  obligations  to  consider  in  this  connection. 
Military  and  naval  appointments,  especially  in  times  of  crisis, 
are  principally  subject  to  presidential  control,  but  political  in- 
fluences are  by  no  means  wanting  here.  It  is  not  often  that 
the  Senate  interferes  with  appointments  to  the  Supreme  Court. ,. 

2.  A  second  group  of  offices,  ^ttedrbyHie  President  and  Senate, 
is  largely  subject  to  the  control  of  the  Senators,  as  a  result  of 
the  practice  known  as  ''  senatorial  courtesy^"  ^  Under  its  power 
to  advise  and  consent,  "the  Senate  does  not  officially  attempt 
to  suggest  nominations  to  the  President,  but  by  a  custom  which 
has  grown  up,  it  willonly  ratify  appointments  which  are  approved 
by  the  Senators  (of  the  President's  party)  from  the  state  in  which 
the  offices  in  question  are  located.  If,  however,  they  are  located 
in  a  state  not  represented  by  a  Senator  of  the  same  party,  the 
President  is  freer  to  act.^  Thus  it  happens  that  appointments 
to  federal  offices  within  a  state  represented  by  members  of  the 
President's  party  are  ^nerally  made  by  the  Senators,  or  by 
the  senior  Senator,  if  he  is  the  stronger  of  the  two.  This  is  not 
always  the  case,  however.  For  example.  President  Garfield 
refused  to  place  before  the  Senate  certain  candidates  for  federal 
offices  in  New  York  suggested  by  Senators  Piatt  and  Conkling 
of  that  state.  The  Senators,  feehng  that  their  rights  had  been 
infringed  by  this  executive  action,  thereupon  tendered  their 
resignations,  but  on  asking  for  vindication  by  the  New  York 
legislature  failed  to  be  reelected.  Here  again,  it  is  not  a  matter 
of  formal  rule,  but  of  time  and  circumstance  —  of  the  character  of 
the  President,  Senators,  and  appointees  in  question.^ 

3.  A  third  group  of  offices  filled  on  presidential  nomination  is 
composed  of  minor  positions  within  congressional  districts,  such 
as  postmasterships  in  the  smaller  cities  and  towns.  It  has  be- 
come a  settled  custom  to  allow  the  Representative,  if  he  is  of  the 
President's  party,  to  name  the  appointees  of  his  district;  but  if 

^Readings,  p.  212.  These  officers  include  revenue  collectors,  postmasters 
in  large  cities,  customs  officers,  judges  of  inferior  courts,  district  attorneys, 
etc. 

^  If  there  is  no  Senator  or  Representative  from  a  state,  belonging  to  his 
party,  the  President  consults  party  leaders  in  the  state  in  question. 

*  On  this  see  Reinsch,  American  Legislatures,  pp.  87  fif. 


192 


American  Government  and  Politics 


he  is  not  of  the  President's  party  the  patronage  goes  to  the  Senator 
or  Senators,  as  in  the  case  of  offices  within  the  second  group.  Mr. 
Bristow,  the  Fourth  Assistant  Postmaster-General,  recently- 
testified  that  when  there  was  a  vacancy  in  a  post-office,  the  ad- 
ministration in  power  would  send  a  request,  upon  a  printed  blank, 
to  the  member  representing  the  district,  if  he  was  in  political 
sympathy  with  the  President's  party,  asking  for  the  recommen- 
dation of  some  one  to  fill  the  place.^  The  advice  of  the  member 
is  not  binding,  however,  if  the  character  or  fitness  of  his  nomi- 
nee is  not  satisfactory  to  the  government.  This  patronage-is  of 
considerable  political  importance,  and  in  most  states  it  is  used 
in  connection  with  the  local  party  organization.^     Thus  local 

^  H.  R.  Reports,  58th  Cong.,  2d  Sess.,  No.,  2372,  p.  7,  Speaking  of  this 
necessity  of  the  President's  reliance  on  the  recommendations  of  members 
of  Congress,  President  Taft  said  :  "A  member  of  a  community  remote  from 
the  capital  .  .  .  wonders  that  a  President^  with  high  ideals  and  professions 
of  a  desire  to  keep  the  government  pure  and  have  efficient  public  servants, 
can  appoint  to  an  important  local  office  a  man  of  mediocre  talent  and  of  no 
particular  prominence  or  standing  or  character  in  the  community.  Of 
course  the  President  cannot  make  himself  aware  of  just  what  standing  the 
official  appointed  has.  He  cannot  visit  the  district;  he  cannot  determine 
by  personal  examination  the  fitness  of  the  appointee.  He  must  depend  upon 
the  recommendations  of  others;  and  in  matters  of  recommendations,  as 
indeed  of  obtaining  office,  it  is  leg  muscle  and  lack  of  modesty  which  win, 
rather  than  fitness  and  character.  The  President  has  assistance  in  making 
his  selection,  furnished  by  the  Congressmen  and  Senators  from  the  locality 
in  which  the  office  is  to  be  filled;  and  he  is  naturally  quite  dependent  on  such 
advice  and  recommendation.  He  is  made  more  dependent  on  this  because 
the  Senate,  by  the  Constitution,  shares  with  him  the  appointing  power;  ,  .  . 
practically  because  of  the  knowledge  of  the  Senators  of  the  locality,  the  ap- 
pointing power  is  in  effect  in  their  hands  subject  only  to  a  veto  by  the  Presi- 
dent."   Four  Aspects  of  Civic  Duty,  p.  98. 

^  The  way  in  which  this  system  may  work  out  is  finely  illustrated  by  this 
despatch  from  Washington,  printed  in  the  New  York  Evening  Post,  of  Decem- 
ber 18,  1909:  "Senator  Albert  J.  Beveridge  of  Indiana  is  one  of  the  busiest 
men  in  Congress  this  winter.  In  the  last  Congressional  election  all  but  two 
of  the  thirteen  Congressional  districts  in  Indiana  went  Democratic,  and  a 
Democrat  was  elected  Senator,  so  that  Mr.  Beveridge  has  control  of  the 
patronage  of  eleven  Congressional  districts,  as  well  as  of  the  general  pat- 
ronage of  the  entire  State.  All  told,  the  Senator  expects  to  dispose  of  about 
200  jobs  this  winter,  ranging  in  importance  from  postmaster  to  two  col- 
lectors of  internal  revenue. 

"  Realizing  his  responsibility,  the  Senator  held  conferences  in  many  parts  of 
the  state  before  coming  to  Washington,  with  a  view  of  ascertaining  the  wishes 
of  the  people  most  affected.    It  has  been  generally  supposed  that  the  Senator 


The  Powers  of  the  President  193 

influences  make  their  way  upward  into  the  federal  administration 
and  give  a  certain  amount  of  autonomy  in  a  highly  centralized 
system.  This  task  of  selecting  appointees  is  usually  a  very  vexa- 
tious one  for  the  member,  for  he  finds  it  difficult  to  please  all  of 
his  constituents,  and  sometimes  makes  more  enemies  than  friends 
by  his  appointments. 

The  power  of  removal,  so  indispensable  for  the  conduct  of 
an  efficient^  administration,  has  been  one  of  the  controverted 
points  of  our  constitutional  law,  but  it  seems  now  to  have  been 
settled  with  a  fair-  degree  of  definiteness.  The  Constitution 
makes  no  provision  for  removal  except  by  way  of  impeachment, 
but  this  is  too  cumbersome  a  process  to  be  used  often,  especially 
for  minor  places.  It  was,  therefore,  early  agreed  that  the  right  of 
removal  was  constitutionally  inherent  in  the  right  to  appoint,^ 
and  that  the  President,  without  consulting  the  Senate,  could 
remove  the  officers  whom  he  nominated.  This  principle  was  ac- 
cepted until  1867,  when  Congress,  then  engaged  in  a  bitter  contro- 
versy with  President  Johnson,  passed  the  Tenure  of  Office  Act  pro- 
viding that  the  President  must  secure  the  consent  of  the  Senate  in 
making  removals.  This  law,  however,  was  later  modified,  and  in 
1887  repealed  altogether,  so  that  the  former  principle  seems  to  be 
restored,  namely,  that  the  President  can  removed  all  officers  whom 
he  appoints  or  nominates"m  the  executive  branch  of  the  govern- 
ment. The  President  can  even  remove  before  the  expiration  of 
the  term  for  which  an  officer  is  appointed,  and  i^  i^pt  required  to 
assign  any  causes  at  all  for  his  action.^  -^^ 

would  build  up  a  political  machine  of  his  own  in  making  these  appointments, 
but  the  fact  is  he  is  retaining  many  of  the  old  appointees  of  the  Fairbanks 
organization  in  oflSce.  His  friends  are  beginning  to  wonder  whether  Bever- 
idge  is  playing  into  the  hands  of  his  enemies  in  his  own  party,  or  has  won 
over  the  old  machine  to  himself." 

^  So  at  least  many  publicists  put  it,  but  in  strict  accord  with  this  principle 
the  Senate  should  share  in  removal  inasmuch  as  it  shares  in  the  right  to 
appoint.  The  principle  is  vague  but  the  practice  b  certain:  the  President 
may  remove  his  appointees. 

'  Readings,  p.  197.  The  federal  judges,  of  course,  hold  ofl&ce  during  good 
behavior  and  can  be  removed  only  by  impeachment. 


194  American  Government  and  Politics 


The  War  Powers  of  the  President 

The  President  is  commander-in-chief  of  the  army  and  navy  and 
of  the  state  miUtia  when  called  into  the  service  of  the  United 
States.  He  holds  this  power  in  time  of  peace  as  well  as  in  time 
of  war.  The  equipment  of  the  army  and  navy  and  the  right  to 
declare  war,  however,  belong^to  Congre^s^,  and  it  is  not  possible 
to  say  just  how  far  into  the  actual  direction  of  the  forces  Congress 
may  go  under  its  constitutional  authority.  Some  pubHcists 
have  even  contended  that  Congress  can  provide  that  a  particular 
offlcer  shall  be  assigned  by  the  commander-in-chief  to  a  particular 
division,  or  that  in  case  a  regiment  or  company  has  been  de- 
spatched to  a  certain  point  by  presidential  order.  Congress  can 
countermand  the  order.^  If  this  is  true,  it  is  difficult  to  see 
why  Congress  might  not  in  a  slow  and  cumbersome  way  practi- 
cally direct  the  conduct  of  a  campaign.  However,  it  is  contended, 
on  the  other  side,  with  more  reason,  that  the/ power  of  Congress 
.  ends  with  providing  and  maintaining  the  army  and  navy  and  de- 
claring war;  and  that  the  entire  command  of  the  military  and 
naval  forces  is  vested  in  the, President,  whose  guidance,  under  the 
Constitution,  is  the  law  of  nations  and  the  rules  of  civiHzed  war- 
fare.^ 

'  The  !t*resident  appoints  all  military  and  naval  officers  by  and 
with  the  advice  and  consent  of  the  Senate^-;— excegi  "iriilitia 
officers  who  are.  appointed  by  the  respective  states,  —  and  in 
:time^of  war  he  may  rem^^  them'  at  will.  In  time  of  peace, 
however,  they  are  removed  by  court  martial. 

"(t\n)he  President  is  not  Umited  in  the  conduct  of  war  to  the 
direction' of  the  armed  forces;  he  may  do  whatever  a  com- 
mander-in-chief is  warranted  in  doing  under  the  laws  of  war 
to  weaken  and  overcome  the  enemy.  It  was  under  this 
general  authority,  inherent  in  his  office,  that  President  Lin- 

•  coin,  during  the  Civil  War,  suspended  the  writ  of  habeas 
corpus  in  states  that  were  not  within  the  theatre  of  the 
armed  conffict.^    It  was  under  this  authority  that  he  aboUshed 

*  Reinsch,  Readings,  p.  22. 

^  See  below,  chap,  xvii;  and  Readings,  pp.  184  and  308  ff. 
^  The  courts  have  held  that  Congress  has  the  power  to  suspend  the  writ 
of  habeas  corpus,  but  Congress  has  conferred  it  on  the  President. 


The  Powers  of  the  President  195 

slavery  in  many  of  the  states;  arrested  and  imprisoned 
arbitrarily  those  charged  with  giving  aid  and  comfort  to  the 
Confederacy;  estabhshed  a  blockade  of  southern  ports;  and, 
in  short,  brought  the  whole  weight  of  the  North,  material 
and  moral,  to  bear  in  the  contest.  Greater  military  power  than 
was  exercised  by  President  Lincoln  in  the  conduct  of  that  war  it 
would  be  difl&cult  to  imagine.^ 

Under  his  war  power,  the  President  may  govern  conquered  ter- 
ritoryi^point  officers  there,  make  laws  and  ordinances,  lay  and 
collect  taxes  of  all  kinds,  and,  in  short,  exercise  practically  every 
sovereign  right,  until  Congress  has  acted.  One  limitation  has 
been  laid  on  this  power  by  the  Court;  it  was  held  that,  after  the 
ratification  of  the  treaty  with  Spain,  Porto  -Rico  and  the  Philip- 
pines became  a  part  of  the  United  States  within  the  meaning  of 
the  revmue~act"s7so lfiat~duties  could  not  be  laid  by^ executive 
order  on  goods  passing  from  those  isFands  to  the  United  States  or 
vice  versa. 

The  President  may  use  armed  forges  in  carrying  into  execur 
tion  the  TederalTaw  against  resistance  that  cannot  be  overcome 
by  ordinary  civil  process.  The  United  States,  under  the  Consti- 
tution, guarantees  to  each  commonwealth  a  repubhcan  form  of 
government,  and  protects  it  against  invasion,  and,  on  application 
of  the  legislature  or  of  the  executive  (if  the  legislature  is  not  con- 
vened), against  domestic  violence.  By  act  of  Congress,  the 
President  is  authorized  to  call  forth  the  mihtia  when  aid  is  asked 
in  due  form  by  the  authorities  of  a  state  strugghng  against  an  in- 
surrection. It  is  by  statutory  law  also  that  the  President  is 
empowered  to  use  the  militia 'or  the  army  and  navy  whenever,  by 
reason  of  obstructions,  assemblages,  or  rebellion,  it  -becomes  im- 
practicable, in  his  judgment,  to  enforce  federal  law  within  any 
state  or  territory  by  the  ordinary  course  of  judicial  procedure. 
It  was  under  this  authority,  and  his  general  obligation  to  see  to 
the  faithful  execution  of  the  law,  that  President  Cleveland  used 
federal  troops  during  the  Chicago  strike.^ 

^  Readings,  p.  69;  see  below,  chap.  xvii. 
^Readings,  p.  317. 


196  American  Government  and  Politics 


The  President  and  Foreign  A  fairs 

The  President  is  the  official  spokesman  of  the  nation  in  the 
conduct  of  all  foreign  affairs/  and  he  is  primarily  responsible  for 
our  foreign  policy  and  its  results.  It  is  true,  however,  that  he  is 
controlled  in  some  matters  by  the  Senate  and  in  others  by  Con- 
gress. The  Senate  must  confirm  his  nominations  to  diplomatic 
and  consular  positions,  and  must  approve  his  treaties,  and  Con- 
gress alone  can  create  diplomatic  and  consular  positions  and  pro- 
vide the  salaries  attached  to  them.  Congress  must  also,  in  many 
cases,  make  provision  for  the  execution  of  treaties,  but  it  has  no 
right  to  estabUsh  and  conduct  relations  with  any  foreign  power 
independently  of  the  President. 

Under  the  Constitution,  the  President  appoints  ambassadors, 
other  public  ministers,  and  consuls,  subject  to  the  confirmation 
of  the  Senate;  he  makes  treaties  with  the  consent  of  two-thirds 
of  the  Senators  present;  and  he  receives  ambassadors  and  public 
ministers  from  foreign  countries;^  but  his  authority  is  not  lim- 
ited to  the  formal  letter  of  the  law.  He  may  do  many  things  that 
vitally  affect  the  foreign  relations  of  the  country.  He  may 
dismiss  an  ambassador  or  pubUc  minister  of  a  foreign  power 
for  political  as  well  as  personal  reasons,  and,  if  on  the  formey- 
ground,  he  might  embroil  the  country  in  war.  His  power  to  re- 
ceive any  foreign  representative  authorizes  him  to  recognize 
the  independence  of  a  new  state,  perhaps  in  rebellion  against 
its  former  legitimate  sovereign,^  and  thus  he  might  incur  the 
risk  of  war.  He"  may  order  a  fleet  or  a  ship  to  a  foreign  port 
under  circumstances  that  may  provoke  serious  difficulty;  the 
ill-fated  battleship  Maine  was  sent  to  the  harbor  of  Havana  by 
President  McKinley  at  a  time  when  it  was  regarded  by  many 
Spaniards,  though  not  officially,  as  an  unfriendly  act.  The  result 
all  the  world  knows.  As  commander-in-chief  of  the  army  he 
might  move  troops  to  such  a  position  on  the  borders  of  a  neigh- 
boring state  as  to  bring  about  an  armed  conffict.  A  notable  in- 
stance of  such  an  action  occurred  in  the  case  of  the  opening  of  the 

*  Readings,  p.  183. 
^  See  below,  chap.  xvi. 

^  For  example,  Mr.  Roosevelt's  recognition  of  the  republic  of  Panama  in 
revolt  against  Colombia. 


The  Powers  of  the  President  197 

Mexican  War,  when  President  Polk  ordered  our  troops  into  the 
disputed  territory,  and,  on  their  being  attacked  by  the  Mexicans, 
declared  that  war  existed  by  act  of  Mexico.  Again,  in  his  message 
to  Congress  the  President  may  outline  a  foreign  policy  so  hostile 
to  another  nation  as  to  precipitate  diplomatic  difficulties,  if  not 
more  serious  results.  This  occurred  in  the  case  of  the  Venezuelan 
controversy,  when  President  Cleveland  recommended  to  Congress 
demands  which  Great  Britain  could  hardly  regard  as  anything 
but  unfriendly. 

The^President  may  even  go  so  far  as  to  make  "executive  agree- 
ments ".with  foreign  powers  without  the  consent  of  the  Senate. 
The  Constitution  requires  that  only  "  treatie^^ shall  be  confirmed 
by  the  Senate,  and  long  practice  has  shown  cbnclusively  that  this 
term  does  not  cover  every  sort  of  an  international  arrangement 
which  may  be  made.^  Every  adjustment  of  a  minor  matter  with 
a  foreign  country  is  an  agreement.  A  German  who  is  a  naturalized 
citizen  of  the  United  States  returns  to  his  native  country,  and  his 
former  sovereign  calls  upon  him  to  render  military  service;  a  dip- 
lomatic discussion  of  the  case  arises,  and  it  is  finally  settled  by  an 
exchange  of  notes  between  the  Secretary  of  State  and  the  German 
Government;  this  is  clearly  an  "international  agreement." 

The  Une  between  a  treaty  and  an  executive  agreement  is  diffi- 
cult to  draw;  but  the  character  of  the  power  which  the  President 
can  wield  under  his  right  of  making  such  agreements  is  well 
illustrated  by  Mr.  Roosevelt's  action  with  regard  to  Santo  Do- 
mingo. In  January,  1905,  he  drafted  a  treaty  with  the  govern- 
ment of  the  republic  to  the  effect  that  the  United  States  would 
maintain  the  integrity  of  that  country,  supervise  the  administra- 
tion of  its  finances,  make  provisions  for  the  settlement  of  foreign 
claims,  and  generally  assist  in  keeping  order  there.  The  Senate, 
however,  refused  to  ratify  this  treaty;  and  the  President  there- 
upon secured  from  the  Dominican  government  the  appointment  of 
American  citizens  to  supervise  the  finances;  made  provision  for 
the  deposit  of  a  certain  portion  of  the  republic's  revenues  for  the 
benefit  of  foreign  creditors;  and  sent  American  battleships  to  the 
ports  of  that  country.  In  short,  he  carried  out  the  main  terms  of 
the  agreement  without  senatorial  approval,  and  his  policy  was 

*  J.  B.  Moore,  "Treaties  and  Executive  Agreements,"  Political  Science 
Quarterly,  Vol.  XX,  pp.  385  ff.;  also  International  Law  Digest,  Vol.  V,  p.  210. 


igS  American  Government  and  Politics 

severely  criticised  by  the  opposition  in  the  Senate.  "The  treaty 
has  been  practically  carried  into  effect  without  consulting  the 
Senate,"  contended  Senator  Ra3aier.  "The  appointment  of  an 
American  agent  as  an  official  of  Santo  Domingo  to  collect  its 
customs  was  simply  a  cover  and  an  evasion.  Under  the  principles 
of  international  law  and  the  comity  of  nations,  this  government 
is  morally  bound  for  the  proper  custody  of  this  fund,  and  would 
be  liable  in  case  of  its  waste  or  loss.  ,  .  .  Now  when  you  add  to 
this  the  fact  that  our  warships  are  in  the  harbors  of  the  island  os- 
tensibly for  the  purpose  of  protecting  American  interests,  but  in 
reahty  protecting  the  officials  of  the  island  against  any  menace 
froni  without  and  revolution  from  within,  you  have  the  estabhsh- 
ment  of  a  sovereignty  or  a  protectorate  without  a  word  from 
Congress  or  the  Senate  sanctioning  the  same."  ^  It  is  evident 
that  the  President,  under  his  unquestioned  authority  to  make 
executive  agreements,  might  go  to  great  lengths  and  make  ar- 
rangements with  a  foreign  power  far  more  serious  in  character 
than  is  often  stipulated  by  formal  treaty.  Nevertheless,  in  this 
matter  as  in  many  other  matters  of  government,  time  and  cij[z; 
cumstance  must  determine.  . 

The  President,  in  addition  to  his  administrative  duties,  enjoys 
the  power  to  grant  reprieves  and  pardons  (except  in  cases  of  im-^ 
peachment)  for  offences  against  the  United  States.  No  liniit-s 
are  imposed  on  his  exercise  of  this  power,  and  therefore  it  may 
be  used  as  he  sees  fit.  He  may  remit  a  fine,  commute  a  death 
sentence  to  a  term  of  imprisonment,  or  free  the  offender  alto- 
gether; but  when  forfeiture  of  office  is  one  of  the  penalties 
imposed,  he  cannot  restore  the  offender  to  his  former  position. 
Though  the  usual  process  is  to  pardon  after  conviction,  a 
pardon  may  be  granted  before  or  during  trial. 

In  the  exercise  of  his  power  of  pardon,  the  President  relies,  of 
course,  largely  upon  the  opinions  of  others.  The  application  for 
executive  clemency,  with  all  the  papers  attached  is  sent  to  the 
Attorney-General,  in  whose  department  there  is  a  pardon-clerk 
in  charge  of  the  prehminary  stages.  Usually  the  judge  and  dis- 
trict attorney  under  whose  supervision  the  case  was  first  tried 
are  asked  to  make  any  statement  they  may  choose  about  the 
merits  of  the  case.    The  Attorney-General  endorses  on  the  apph- 

^  Reinsch,  Readings,  pp.  79  flf.,  for  a  full  discussion  of  this  important  point. 


The  Powers  of  the  President  199 

cation  his  opinion  as  to  what  course  of  action  should  be  pursued, 
and  the  papers  are  then  sent  to  the  President  for  final  determina- 
tion. "If  the  trial  seems  to  have  been  fairly  conducted,"  said 
President  Harrison,  "and  no  new  exculpatory  evidence  is  pro- 
duced, and  the  sentence  does  not  seem  to  have  been  unduly  se- 
vere, the  President  refuses  to  interfere.  He  cannot  weigh  the 
evidence  as  well  as  the  judge  and  jury.  They  saw  and  heard  the 
witnesses,  and  he  has  only  a  writing  before  him.  It  often  happens 
that  the  wife  or  mother  of  the  condemned  man  comes  in  person 
to  plead  for  mercy,  and  there  is  no  more  trying  ordeal  than  to  hear 
her  tearful  and  sobbing  utterances  and  to  feel  that  public  duty 
requires  that  she  be  denied  her  prayer."  ^ 

The  President  and  Legislation^ 

The  President's  position  as  chief  executive  officer  is  so  exalted 
and  the  powers  of  that  place  are  so  extensive,  that  his  functions 
as  a  legislator,  both  constitutional  and  customary,  are  often  lost 
sight  of  by  commentators.  He  is  required  by  the  Constitution 
to  give  to  Congress  from  tirrieto  time  information  of  the  state 
of  the  Union  and  to  recommend  such  measures  as  he  may  judgp 
necessary  and  expedient.  In  the  exercise  of  this  function,^ ^  ^ 
may  recommend  laws  and  even  draw  bills,  which  Congress  wilW 
ingly  accepts,  or  which  it  accepts  reluctantly  under  tlie  feeling 
that  the  President  has  the  support  of  his  party  throughout 
the  country,  or  which  it  modifies  or  rejects  altogether  if  it 
disapproves. 
■-v_  The  message  is  the  one  great  public  document  of  the  United 
States  which  is  widely  read  and  discussed.  Congressional  de- 
bates receive  scant  notice,  but  the  President's  message  is  printed 
almost  in  extenso  in  nearly  every  metropolitan  daily,  and  is-  the 
subject  of  general  editorial  comment  throughout  the  length  and 
breadth  of  the  land.  It  is  supposed,  though  often  erroneously, 
to  embody  in  a  very  direct  sense  the  policy  of  the  presidential 
party;  it  stirs  the  country;  it  often  affects  congressional  elec- 
tions; and  if  its  recommendations  correspond  with  real  and 
positive  interests  of  sufficient  strength,  they  sooner  or  later  find 
their  way  into  law. 

*  Harrison,  This  Country  of  Ours,  pp.  146  ff, 
^  Readings^  pp.  194  and  265. 


200  American  Government  and  Politics 

There  ought  to  be  no  cavil  about  the  President's  frequent  and 
considerable  use  of  the  power  to  give  information  to  Congress. 
"From  the  nature  and  duties  of  the  executive  department," 
says  Story,  "h^  must  possess  more  extensive  sources  of  infor- 
mation as  well  in  regard  to  domestic  as  to  foreign  affairs  than  can 
belong  to  Congress.  The  true  workings  of  the  laws,  the  defects 
in  the  nature  or  arrangements  of  the  general  systems  of  trade, 
finance,  and  justice;  and  the  military,  naval,  and  civil  estab- 
lishments of  the  Union  are  more  readily  seen,  and  more  constantly 
junder  the  review  of  the  executive,  than  they  can  possibly  be  of 
any  other  department.  There  is  great  wisdom,  therefore,  in 
not  merely  allowing,  but  in  requiring  the  President  to  lay  before 
Congress  all  facts  and  information  which  may  assist  their  de- 
Hberations;  and  in  enabling  him  at  once  to  point  out  the  evil 
and  suggest  the  remedy.  He  is  thus  justly  made  responsible, 
not  merely  for  a  due  administration  of  the  existing  systems,  but 
for  due  diligence  and  examination  into  the  means  of  improving 
them." ' 

Of  course,  it  may  be  questioned  whether,  in  these  days  of  swift 
communication  of  thought  and  argus-eyed  journalists,  there  is 
very  much  in  the  President's  message,  that  is  new  to  Congress; 
and  moreover,  a  great  deal  of  the  work  of  fitting  legislation  to 
conditions  is  done  either  by  special  or  regular  committees  sup- 
posed to  be  more  or  less  expert  in  the  branches  of  legislation 
intrusted  to  their  charge.  Nevertheless,  there  can  be  no  doubt 
about  the  advisability  of  a  close  association  between  those  who 
make  and  those  who  enforce  the  laws.  Especially  is  this  true 
since  the  President  is  the  only  officer  of  the  national  govern- 
ment who  represents  the  national  party  as  a  whole,  and  it  is  to 
him  that  the  country  looks  for  results  in  administration  — 
results  which  can  only  be  brought  about  by  his  cooperation 
with  his  party  in  Congress. 

The  presidential  message,  at  the  opening  of  Congress,  was 
delivered  in  person  to  the  Senate  and  House  in  joint  assembly 
by  Washington  and  Adams;  but  this  was  abandoned  by  Jeffer- 
son.^ From  that  time  forward  the  practice  has  been  to  commu- 
nicate by  means  of  written  messages. 

^  Commentaries  (5th  ed.),  Vol.  II,  p.  382. 
Readings,  p.  192. 


The  Powers  of  the  President  20 1 

The  presidential  message  is  very  often  not  the  work  of  the 
President  alone,  and  there  are  notable  instances  of  its  being 
principally  the  work  of  some  one  else.  In  every  case,  especially 
of  the  message  prepared  for  the  opening  session  of  Congress,  the 
information  contained  in  the  document  is  largely  furnished  by 
the  various  departments.  The  President  treats  the  material 
sent  to  him  by  the  respective  officers  as  he  sees  fit,  sometimes 
taking  out  paragraphs,  sometimes  condensing,  sometimes  using 
it  merely  as  the  basis  for  his  own  conclusions.^  Some  of  President 
Roosevelt's  special  messages  were  founded  on  the  reports  of 
commissions,  and  were  accompanied  by  handsome  illustrations; 
others  were  his  own  work,  prepared  primarily  to  promulgate  his 
own  views  with  regard  to  some  particular  topic  which  he  wished 
to  make  of  public  interest. 

The  treatment  which  the  President's  recommendations  receive, 
of  course,  varies  according  to  circumstances.  They  may  be 
accepted,  because  Congress  feels  that  they  are  sound  in  principle 
or  because  there  is  an  effective  demand  for  them  in  the  country; 
or  they  may  be  accepted  because  the  President  by  his  party 
leadership,  or  personal  favors,  or  use  of  patronage  can  bring  the 
requisite  pressure  to  bear  on  Senators  and  Representatives  to 
secure  their  passage. 

The  power  of  vetoing  measures  of  Congress,  like  that  of  send- 
ing messages,  possesses  a  legal  and  a  practical  aspect.  Every_ 
bill  or  joint  resolution  must  be  presented  to  the  President;  if 
he  signs,  it  becomes  a  law;  if  he  disapproves,  he  must  return  it 
to  the  house  in  which  it  originated,  with  a  statement  of  his  objec- 
tions; and  the  house  must,  thereupon,  reconsider  it.  A  two- 
thirds  vote  of  both  houses  is  sufiicient  to  carry  the  measure  over 
the  executive  veto.  The  same  procedure  is  applied  to  orders, 
repolutions,  and  votes  to  which  a  concurrence  of  both  houses  is 
necessary,  excepting  questions  of  adjournment.-  ,  If  the  President 
fails  to  return  a  measure  within  ten  days  (Sundays  excepted) 
after  it  is  presented  to  him,  it  becomes  a  law  without  his  signa- 
ture, unless  Congress  prevents  its  return  by  adjourning,  in  which 

*  Reinsch,  Readings,  p.  8. 

^  In  practice  "concurrent  resolutions"  are  not  submitted  to  the  President. 
See  below,  p.  290.  In  practice  also  amendments  to  the  federal  constitution 
are  not  submitted  to  the  President.  Burgess,  Political  Science  and  Constitu- 
tional Law,  Vol.  I,  p.  148. 


202  American  Government  and  Politics 

case  it  doesjiot^ecome  a  law.  When  Congress  adjourns  leaving 
many  bills  to  be  signed,  the  President  may  suppress  quietly  the 
bills  to  which  he  entertains  objections;  and  this  is  known  as  the 
"  pocket  veto."  ^  ^-^  "' 

The  President  does  not  veto  single  items  in  appropriation 
bills,  and  Congress  has  attached  other  measures  —  disapproved 
by  the  President  —  to  appropriation  laws,  and  thus  forced  his 
signature.  This  practice  of  attaching  "  riders  "  is  somewhat 
discredited,  and  is  seldom  employed. 

The  veto  power,  in  Hamilton's  view,  was  conferred  on  the 
President  because  of  the  propensity  of  the  legislative  department 
to  intrude  upon  the  rights  and  absorb  the  powers  of  the  other 
departments,  and  also  because  of  the  necessity  of  furnishing  the 
executive  with  a  means  of  defending  his  constitutional  preroga- 
tives. But  he  added,  "The  power  in  question  has  a  further 
use.  It  not  only  serves  as  a  shield  to  the  executive,  but  it  fur- 
nishes an  additional  security  against  the  enaction  of  improper 
laws.  It  establishes  a  salutary  check  upon  the  legislative  body, 
calculated  to  guard  the  community  against  the  effects  of  faction, 
precipitancy,  or  of  any  impulse  unfriendly  to  the  public  good, 
which  may  happen  to  influence  a  majority  of  that  body.  .  .  . 
They  will  consider  every  institution  calculated  to  restrain  the 
excess  of  law-making,  and  to  keep  things  in  the  same  state  in 
which  they  may  happen  to  be  at  any  given  period,  as  much  more 
likely  to  do  good  than  harm;  because  it  is  favorable  to  a  greater 
stability  in  the  system  of  legislation.  The  injury  which  might 
be  done  by  defeating  a  few  good  laws  will  be  amply  compensated 
by  the  advantage  of  preventing  a  number  of  bad  ones."  ^ 

0n  the  question  of  exercising  the  veto,  different  views  have 
prevailed.  Jefferson  contended:  "Unless  the  President's  mind, 
on  a  view  of  everything  which  is  urged  for  and  against  the  bill, 
is  tolerably  clear  that  it  is  unauthorized  by  the  Constitution  — 
if  the  pro  and  con  hang  so  even  as  to  balance  his  judgment  —  a 
just  respect  for  the  wisdom  of  the  legislature  would  naturally 
decide  the  balance  in  favor  of  their  opinion."^  General  Taylor 
held^  that  the  veto  power  should  never  be  exercised  "except  in 

^  Readings,  p.  187. 

^  The  Federalist,  No.  LXXIII. 

^  Quoted  in  Lincoln,  Works,  Vol.  II,  p.  61. 

*/i>Ki.,  Vol.  II,  p.  61. 


The  Powers  of  the  President  203 

cases  of  clear  violation  of  the  Constitution,  or  manifest  haste 
and  want  of  consideration  by  Congress."  President  Jackson, 
however,  whose  relations  to  Congress  were  quite  different  from 
those  of  either  Jefferson  or  Taylor,  had  his  own  opinion  of  what 
the  Constitution  was,  and  alleged  unconstitutionality  as  one 
of  the  grounds  for  vetoing  the  Bank  Bill,  although  such  an  insti- 
tution had  been  declared  constitutional  by  the  Supreme  Court.^ 
In  vetoing  a  bill,  President  Grant  assigned  as  his  reason  the  fact 
that  it  was  "a  departure  from  true  principles  of  finance,  national 
interest,  national  obligations  to  creditors,  congressional  promises, 
party  pledges  (of  both  political  parties),  and  personal  views  and 
promises  made  by  me  in  every  annual  message  sent  to  Congress 
and  in  each  inaugural  address."  Mr.  Cleveland  expressed  his 
opinion  that  the  veto  power  was  given  to  the  President  for  the 
purpose  of  invoking  the  exercise  of  executive  judgment  and  in- 
viting independent  executive  action. 

Certainly  the  President  is  expected  to  safeguard  the  Constitu- 
tion by  vetoing  unconstitutional  acts  of  Congress.  This  is 
especially  true  because  many  laws  can  only  be  brought  before 
the  Courts  in  a  collateral  way,  if  at  all. 

The  development  of  the  exercise  of  the  veto  power  is  thus 
summed  up  by  Finley  and  Sanderson:  ^  "From  the  organization 
of  the  government  under  the  Constitution  to  the  end  of  President 
Cleveland's  second  term,  the  number  of  bills  vetoed  was  about 
five  hundred.  Authorities  differ  slightly.  The  figures,  includ- 
ing pocket  vetoes  upon  which  messages  were  written  and  bills 
informally  or  irregularly  presented,  seem  to  be  four  hundred  and 
ninety-seven,  of  which  the  number  regularly  vetoed  appears  to 
be  four  hundred  and  eighty.  Two  hundred  and  sixty-five  of 
these  were  private  pension  bills,  of  which  five  were  vetoed  by 
President  Grant  and  the  remainder  by  President  Cleveland.  Of 
private  bills,  other  than  pension  bills,  seventy  were  vetoed;  of 
local  or  special  bills,  eighty-seven.  The  remainder,  seventyrfive 
in  number,  including  bills  for  the  admission  of  states  into  the 
Union,  are  classified  as  general  bills.  Of  these  seventy-five, 
President  Washington  vetoed  two,  Madison  three,  Jackson  six, 
Tyler  five,  Polk  one,  Pierce  three,  Buchanan  three,  Lincoln  two, 

*  Readings,  p.  187. 

2  Finley  and  Sanderson,  The^Amerkan  Executive,  p.  211.    • 


204  American  Government  and  Politics 

Johnson  eighteen,  Grant  nine,  Hayes  ten,  Arthur  three,  Cleve- 
land eight,  Benjamin  Harrison  two."  John  Adams,  Jefferson, 
John  Quincy  Adams,  W.  H.  Harrison,  Taylor,  Fillmore,  and 
Garfield  did  not  use  the  veto  power.  Mr.  McKinley  vetoed  at 
least  fourteen  measures  and  Mr.  Roosevelt  at  least  forty-two. 

The  procedure  of  the  President  in  dealing  with  bills  has  been 
described  by  Mr.  Harrison.^  On  its  passage  through  Congress, 
a  bill  is  signed  by  the  President  of  the  Senate  and  Speaker  of 
the  House;  it  is  then  taken  to  the  Executive  Mansion  and  usually 
referred  to  the  head  of  the  executive  department  to  which  its 
subject  matter  relates;  in  case  a  question  of  constitutionality 
arises,  the  Attorney- General  is  consulted.  The  bill  then  goes  to 
the  President  with  the  departmental  report  upon  it,  and  if  he 
approves  he  signs  the  bill,  dates  it,  and  sends  it  to  the  Department 
of  State  for  filing  and  pubhcation.  If  he  disapproves  the  bill, 
and  Congress  is  still  in  session,  he  returns  it  to  the  house  in  which 
it  originated,  with  his  objections,  and  perhaps  with  recommenda- 
tions for  amendment. 

The  veto  power,  taken  in  connection  with  the  message  and  the 
appointing  power,  is  an  effective  political  instrument  in  the  hands 
of  the  President.  By  using  a  threat  of  the  veto,  he  may  secure 
the  passage  of  bills  which  he  personally  favors;  and  at  all  times, 
in  considering  important  measures.  Congress  must  keep  in  view 
the  possible  action  of  the  President,  especially  where  it  is  a  party 
question  and  the  correct  attitude  before  the  country  is  indispen- 
sable. Mr.  Roosevelt  even  went  so  far  as  to  warn  Congress 
publicly  that  he  would  not  sign  certain  measures  then  before 
that  body  —  and  raised  a  storm  of  protest  from  those  who  said 
that  he  should  not  veto  a  bill  until  it  was  laid  before  him. 

The  President's  Privileges  and  Rights 

In  addition  to  his  powers  and  duties,  the  President  enjoys 
certain  privileges  and  rights.  No  tribunal  in  the  land  has  any 
jurisdiction  over  him  for  any  offence.  He  cannot  be  arrested 
for  any  crime,  no  matter  how  serious  —  even  murder/?  He  may 
be  impeached,  but  until  judgment  has  been  pronounced  against 
him,  he  cannot  be  in  any  way  restrained  of  his  liberty. 

*  This  Country  of  Ours,  p.  128. 

'  Burgess,  Political  Science  and  Constitutional  Law,  Vol.  II,  p.  246. 


The  Powers  of  the  President  205 

The  President  is  entitled  by  right  to  payment  for  his  services, 
for  the  Constitution  provides  that  he  shall  receive  at  stated  times 
a  compensation  which  may  not  be  increased  or  diminished  during 
the  term  for  which  he  is  elected.  He  is  forbidden,  however,  to 
receive  any  other  emolument  from  the  United  States  or  from  any 
state.  The  salary  of  the  President  was  fixed  at  $25,000  in  the 
beginning;  it  was  increased  to  $50,000  in  1871;  and  to  $75,000 
in  1909.  In  addition  to  his  personal  salary  the  President  is 
furnished  an  Executive  Mansion,  executive  offices,  and  certain 
additional  allowances.  For  example,  in  the  appropriation  bill 
of  1909,  the  following  sums  were  set  apart  for  the  use  of  the 
President:  — 

President's  salary $75,000 

Secretaries,  clerks,  etc. 69,920 

Contingent  fund           .         .        .     ' 25,000 

Travelling  expenses 25,000 

For  vehicles,  stables,  etc 3 5, 000 

For  additional  improvements  to  White  House     .        .        .  40,000 

For  furnishings,  draperies,  etc 15,000 

For  care  of  grounds 5, 000 

Fuel  for  White  House  and  stables 6,000 

Care  of  greenhouse 9,000 

Repairs  to  greenhouse '.        .  3,000 

Printing .         .  2,000 

Lighting  White  House  and  public  grounds          .        .        .  19,500 

Total  for  Executive  Department  for  one  year     .        .        .  $329,420  * 

The  Relations  of  the  Executive  and  Legislative  Departments 

Notwithstanding  the  fact  that,  in  accordance  with  traditional 
American  political  theory,  the  executive  and  legislative  depart- 
ments ought  to  be  kept  entirely  separate,  as  a  matter  of  practice 
such  separation  is  not  only  impossible,  but  highly  undesirable, 
because  it  breaks  the  natural  tie  which  must  exist  between  the 
body  which  expresses  popular  will  and  the  authority  charged 
with  carrying  that  will  into  execution.  Acc^dingly  there  has 
been  established  in  practice  a  fairly  close  connection  between 
the  executive  and  legislative  departments.  This  has  been  accom- 
plished in  many  ways. 

'  Congressional  Record  for  January  5, 1910.  The  Vice-President's  salary  is 
$12,000. 


2o6  American  Government  and  Politics 

I.  In  the  first  place,  the  party  tie,  of  necessity,  binds  the 
President  and  the  members  of  his  party  in  Congress.  Although 
they  may  from  time  to  time  engage  in  controversies  more  spec- 
tacular than  edifying,  yet  on  fundamental  matters  of  policy, 
the  President  and  Congress  must  come  into  a  sort  of  working 
agreement.  Furthermore,  the  President  is  regarded  as  the 
leader  of  his  party,  and  it  is  to  him,  rather  than  to  Congress, 
that  his  party  looks  for  the  enforcement  of  any  specific  promises 
laid  down  in  the  platform  or  made  officially  during  the  presiden- 
tial campaign.  Congress  cannot,  therefore,  ignore  the  leadership 
of  the  President,  and,  however  much  it  may  oppose  his  policy, 
it  must  give  heed  to  those  measures  in  which  he  has  unquestioned 
national  party  support. 

Within  recent  years,  we  have  come  to  recognize  more  frankly 
than  ever  this  position  of  the  President  as  party  leader.  Mr. 
Roosevelt  was  largely  responsible  for  the  poUcies  which  the 
Republican  party  has  made  national  issues.  In  his  speeches 
made  at  different  points  throughout  the  country,  and  in  his  presi- 
dential messages,  he  advocated  doctrines  and  measures  which 
Congress  was  compelled,  even  against  its  will,  to  accept  because 
it  realized  that  he  had  behind  him  powerful  national  interests 
which  could  not  be  disregarded.^  As  party  leader  he  issued,  in 
1906,  a  general  letter  endorsing  the  Republican  members  of 
Congress  and  calling  upon  the  country  to  support  them  in  the 
coming  election;  two  years  later  he  singled  out  individual  mem- 
bers of  Congress  and  gave  them  special  letters  of  commendation.^ 

Mr.  Taft  likewise  frankly  assumed  the  position  of  party 
leadership.  He  was  largely  instrumental  in  the  adjustment  of 
differences  between  the  Senate  and  the  House  of  Representatives 
over  the  tariff  bill  of  1909.  While  it  may  not  be  said  that  his 
conclusions  on  every  matter  were  accepted,  there  can  be  no 
doubt  that  his  frequent  meetings  with  the  members  of  the  joint 
conference  committee  charged  with  the  settlement  of  those 
differences  were  of  the  greatest  significance  in  securing  harmony 
and  "a  reasonable  compliance  with  the  party  pledges  for  tariff 
revision"  that  were  laid  down  in  the  platform  on  which  he  made 
his  presidential  campaign.     Mr.  Taft  also  followed  the  example 

^  Readings,  p.  265. 

^  New  York  Times,  May  28,  1908. 


The  Powers  of  the  President  207 

of  his  predecessor  in  making  a  general  appeal  to  his  countrymen 
by  means  of  pubUc  addresses.  In  the  autumn  of  1909,  he  made  a 
tour  throughout  the  West  and  South,  discussing  party  problems 
and  stating  his  own  policies  —  in  short,  he  assumed  the  role  of 
political  leader  not  unHke  that  assumed  by  the  Prime  Minister 
of  England,  who,  in  a  series  of  pubhc  addresses  at  different  points 
in  Great  Britain,  strikes  the  keynote  for  harmonious  party  action. 

Mr.  Taft  expressly  declared  that  he  beheved  it  to  be  the  duty 
of  the  President  to  assume  the  position  of  leadership  in  his 
party.  "Under  our  system  of  poUtics,"  he  says,  "the  President 
is  the  head  of  the  party  which  elected  him,  and  cannot  escape 
responsibihty  either  for  his  own  executive  work  or  for  the  legis- 
lative policy  of  his  party  in  both  houses.  He  is,  under  the 
Constitution,  himself  a  part  of  the  legislature  in  so  far  as  he  is 
called  upon  to  approve  or  disapprove  acts  of  Congress.  A 
President  who  took  no  interest  in  legislation,  who  sought  to 
exercise  no  influence  to  formulate  measures,  who  altogether 
ignored  his  responsibility  as  the  head  of  the  party  for  carrying 
out  ante-election  promises  in  the  matter  of  new  laws,  would  not 
be  doing  what  is  expected  of  him  by  the  people.  In  the  discharge 
of  all  his  duties,  executive  or  otherwise,  he  is  bound  to  a  certain 
extent  to  consult  the  wishes  and  even  the  prejudices  of  the  mem- 
bers of  his  party  in  both  houses,  in  order  that  there  shall  be 
secured  a  unity  of  action  by  which  necessary  progress  may  be 
made  and  needed  measures  adopted."  ^ 

2.  The  party  tie  is  by  no  means  the  only  bond  of  union  be- 
tween the  executive  and  legislative  departments.  By  vesting 
the  appointing  power  to  a  large  number  of  important  offices  in 
the  hands  of  the  President  and  Senate,  the  Constitution  draws 
the  two  departments  together.  The  extent  to  which  the  Presi- 
dent may  use  his  power  over  appointments  to  influence  his  party 
friends  in  Congress,  or  the  extent  to  which  the  Senate  may  employ 
its  confirming  power  to  bend  the  President  to  its  will,  depends 
upon  circumstances;  but  it  is  perfectly  clear  that  either  may 
take  advantage  of  the  opportunity  offered  by  this  constitutional 
connection.  An  excellent  illustration  of  the  way  in  which  the 
President  may  influence  legislation  is  afforded  by  Mr.  Dana's 
account  of  President  Lincoln's  manoeuvres  to  secure  the  adop- 

Four  Aspects  of  Civic  Duty,  p.  100. 


2o8  American  Government  and  Politics 

lion  of  the  Thirteenth  Amendment.     It  is  so  eloquent  that  it 
deserves  quotation  in  full. 

Lincoln  was  a  supreme  politician.  He  understood  politics  because 
he  understood  human  nature.  I  had  an  illustration  of  this  in  the 
spring  of  1864.  The  administration  had  decided  that  the  Consti- 
tution of  the  United  States  should  be  amended  so  that  slavery  should 
be  prohibited.  This  was  not  only  a  change  in  our  national  policy, 
but  it  was  also  a  most  important  miUtary  measure.  It  was  intended 
not  merely  as  a  means  of  abolishing  slavery  forever,  but  as  a  means 
of  affecting  the  judgment  and  the  feelings  and  the  anticipations  of 
those  in  rebellion.  It  was  believed  that  such  an  amendment  to  the 
Constitution  would  be  equivalent  to  new  armies  in  the  field,  that  it 
would  be  worth  at  least  a  million  men,  that  it  would  be  an  intellectual 
army  that  would  tend  to  paralyze  the  enemy  and  break  the  con- 
tinuity of  his  ideas. 

In  order  thus  to  amend  the  Constitution,  it  was  necessary  first  to 
have  the  proposed  amendment  approved  by  three-fourths  of  the  states. 
When  that  question  came  to  be  considered,  the  issue  was  seen  to  be 
so  close  that  one  state  more  was  necessary.  The  state  of  Nevada 
was  organized  and  admitted  into  the  Union  to  answer  that  purpose. 
I  have  sometimes  heard  people  complain  of  Nevada  as  superfluous 
and  petty,  not  big  enough  to  be  a  state;  but  when  I  hear  that  com- 
plaint, I  always  hear  Abraham  Lincoln  saying,  "It  is  easier  to  admit 
Nevada  than  to  raise  another  million  of  soldiers." 

In  March,  1864,  the  question  of  allowing  Nevada  to  form  a  state 
government  finally  came  up  in  the  House  of  Representatives.  There 
was  strong  opposition  to  it.  For  a  long  time  beforehand  the  question 
had  been  canvassed  anxiously.  At  last,  late  one  afternoon,  the  Presi- 
dent came  into  my  office,  in  the  third  story  of  the  War  Department.  .  .  . 

"Dana,"  he  said,  "I  am  very  anxious  about  this  vote.  It  has 
got  to  be  taken  next  week.  The  time  is  very  short.  It  is  going  to 
be  a  great  deal  closer  than  I  wish  it  was." 

"There  are  plenty  of  Democrats  who  will  vote  for  it,"  I  replied. 
"There  is<  James  E.  English,  of  Connecticut;  I  think  he  is  sure,  isn't 
he?" 

"Oh,  yes;   he  is  sure  on  the  merits  of  the  question." 

"Then,"  said  I,  "there's  'Sunset'  Cox,  of  Ohio.    How  is  he?" 

"He  is  sure  and  fearless.  But  there  are  some  others  that  I  am  not 
clear  about.  There  are  three  that  you  can  deal  with  better  than 
anybody  else,  perhaps,  as  you  know  them  all.  I  wish  you  would  send 
for  them." 

He  told  me  who  they  were;  it  is  not  necessary  to  repeat  the  names 
here.    One  man  was  from  New  Jersey  and  two  from  New  York. 


The  Powers  of  the  President  209 

"What  will  they  be  likely  to  want?"  I  asked. 

"I  don't  know,"  said  the  President;  "I  don't  know.  It  makes  no 
difference,  though,  what  they  want.  Here  is  the  alternative:  that 
we  carry  this  vote,  or  be  compelled  to  raise  another  million,  and  I 
don't  know  how  many  more,  men,  and  fight  no  one  knows  how  long. 
It  is  a  question  of  three  votes  or  new  armies." 

"Well,  sir,"  said  I,  "what  shall  I  say  to  these  gentlemen?" 

"I  don't  know,"  said  he;  "but  whatever  promise  you  make  to 
them  I  will  perform." 

I  sent  for  the  men  and  saw  them  one  by  one.  I  found  that  they 
were  afraid  of  their  party.  They  said  that  some  fellows  in  the  party 
would  be  down  on  them.  Two  of  them  wanted  internal  revenue 
collector's  appointments.  "You  shall  have  it,"  I  said.  Another  one 
wanted  a  very  important  appointment  about  the  custom  house  of 
New  York.  I  knew  the  man  well  whom  he  wanted  to  have  appointed. 
He  was  a  RepubUcan,  though  the  congressman  was  a  Democrat.  I 
had  served  with  him  in  the  Republican  county  committee  of  New  York. 
The  office  was  worth  perhaps  $20,000  a  year.  When  the  congressman 
stated  the  case,  I  asked  him,  "Do  you  want  that?" 

"Yes,"  said  he. 

"Well,"  I  answered,  "you  shall  have  it." 

"I  understand,  of  course,"  said  he,  "that  you  are  not  saying  this 
on  your  own  authority?" 

"Oh,  no,"  said  I ;  " I  am  saying  it  on  the  authority  of  the  President." 

Well,  these  men  voted  that  Nevada  be  allowed  to  frame  a  state 
government,  and  thus  they  helped  secure  the  vote  which  was  required. 
The  next  October  the  President  signed  the  proclamation  admitting 
the  state.  In  the  February  following,  Nevada  was  one  of  the  states 
which  ratified  the  Thirteenth  Amendment  by  which  slavery  was 
abolished  by  constitutional  prohibition  in  all  of  the  United  States.' 

3.  The  imperative  necessity  under  which  Congress  is  placed 
of  securing  information  from  executive  departments  with  regard 
to  legislative  matters,  and  the  desire  of  executive  officers  to 
secure  new  laws  and  amendments  to  old  laws,  constitute  another 
important  bond  of  union  between  the  executive  and  the  legisla- 
ture. Congress  is  constantly  making  demands  upon  the  execu- 
tive for  papers,  documents,  and  special  information  of  one  kind 
or  another,  and  in  so  far  as  the  President  regards  these  demands 
as  reasonable  and  compatible  with  public  interest  he  complies 
with  them.     As  a  matter  of  right,  Congress  may  call  upon  the 

*  C.  A.  Dana,  Recollections  of  the  Civil  War,  pp.  174-177, 
p 


210  American  Government  and  Politics 

executive  for  information,  but  it  has  no  power,  under  the  Con- 
stitution, to  compel  him  to  furnish  papers  and  documents. 

In  practice,  the  anxiety  of  the  administration  to  secure  favor- 
able consideration  of  its  own  measures  in  Congress  leads  it  to 
comply  quite  readily  with  requests  for  information.  This  is 
as  it  should  be,  for  frequently  those  who  have  charge  of  the  ex- 
ecution of  the  laws  know  more  about  the  actual  conditions  to 
which  the  laws  must  apply  and  the  actual  effect  of  the  laws  than 
do  the  legislators  themselves.^  Furthermore,  it  is  wise  that  those 
who  are  called  upon  to  execute  the  laws  should  know  the  spirit 
and  intention  of  those  who  have  passed  them. 

4.  Quite  an  intimate  relation  is  estabUshed  between  Congress 
and  the  executive  through  the  practice  of  the  former  in  inviting 
the  assistance  of  departmental  chiefs  in  drafting  bills.  Very 
frequently  the  Attorney- General,  who  is  supposed  to  be  merely  the 
legal  adviser  of  the  President,  is  asked  to  give  his  opinion  before 
a  committee  or  to  advise  members  of  Congress  on  some  partic- 
ular matters  up  for  legislative  action.^  It  is  also  sometimes  the 
practice  for  heads  of  departments  to  draft  complete  measures, 
transmit  them  to  Congress  either  through  a  friend  in  that  body, 
or  even  directly,  and  secure  their  reference  to  proper  committees 
and  ultimately  their  passage.^  It  is  a  matter  of  common  know- 
ledge also  that  the  President  from  time  to  time  invites  to  the 
White  House  members  of  Congress  who  may  be  of  influence  in 
securing  the  enactment  of  laws  favored  by  the  administration. 
On  the  other  hand,  Congress  has  in  a  number  of  instances  even 
assumed  the  right  to  advise  the  President,  by  a  statute  or  by  a 
resolution,  to  adopt  some  particular  executive  policy. 

5.  Another  important  line  of  connection  is  established  be- 
tween the  executive  and  legislature  through  appropriations.  The 
Treasury  Department  is  by  law  placed  in  a  special  relation  to 
Congress;  for  Congress  has  the  power  to  call  directly  upon  that 
department  for  financial  information  without  going  through  the 
form  of  making  a  request  to  the  President.  The  Treasury 
Department  collects  the  estimates  of  the  amount  of  money 

*  It  should  be  remembered  that  many  members  of  Congress  have  seen 
long  committee  service  and  know  more  about  administration  than  a  new 
President  or  executive  officer. 

2  This  is  informally,  of  course. 

'^Readings,  pp.  196  and  267. 


The  Powers  of  the  President  2ii 

required  by  the  various  executive  branches  and  compiles  these 
estimates  in  a  book  which  is  printed  and  submitted  to  Congress 
at  the  beginning  of  each  regular  session.  The  first  Secretary 
of  the  Treasury,  Hamilton,  claimed  the  right  to  report  whenever 
he  pleased  on  financial  matters,  although  in  practice  his  famous 
reports  and  recommendations  were  submitted  to  Congress  only 
upon  request.  It  is  true,  his  demand  for  admission  to  the  House 
of  Representatives  for  the  purpose  of  defending  his  poHcies  was 
denied;  but  throughout  his  term  he  maintained  very  close  rela- 
tions with  his  supporters  in  Congress  and  directed  legislative 
tactics  especially  with  regard  to  the  funding  of  the  national  debt 
and  the  assumption  of  state  debts.  In  a  letter  to  Jay  he  wrote: 
"  'Tis  not  the  load  of  proper  official  business  that  alone  engrosses 
me,  though  this  would  be  enough  to  occupy  any  man.  'Tis 
in  the  extra  attention  that  I  am  obHged  to  pay  to  the  course  of 
legislative  manoeuvres  that  alone  adds  to  my  burden  and 
perplexity."^ 

This  relation  between  the  executive  department  and  Congress 
in  the  matter  of  finance  has  been  made  even  more  intimate  by 
the  recent  law  (1909)  authorizing  the  President  to  review  the 
estimated  expenditures  and  revenues  and  make  specific  recom- 
mendations to  Congress  as  to  the  best  methods  to  be  employe(i 
in  securing  a  satisfactory  balance  in  the  budget.  This  law  shifts 
to  the  President  a  large  burden  of  responsibility  which  has 
hitherto  rested  on  Congress  and  undoubtedly  will  give  an  addi- 
tional weight  to  executive  influence  in  legislative  matters. 

Proposals  to  Establish  Formal  Connections  between  the  Executive 
and  Legislative  Departments 

Several  times  in  our  history  it  has  been  suggested  that  the 
heads  of  departments  should  be  given  places  in  the  legislature 
for  the  purpose  of  explaining  and  defending  there,  not  only 
measures  recommended  by  the  administration,  but  also  the 
various  policies  pursued  in  the  execution  of  the  law.  It  is  true, 
the  Constitution  would  prevent  heads  of  departments,  as  civil 
officers,  from  being  at  the  same  time  members  of  either  house, 
but  the  houses,  either  separately  or  jointly,  may  admit  persons 
who  are  not  members  and  authorize  them  to  speak  on  any  matter. 

*  Hamilton,  Works,  Vol.  X,  p.  29. 


212  American  Government  and  Politics 

Indeed,  the  act  of  1789  organizing  the  Treasury  Department, 
provided  "  that  the  Secretary  of  the  Treasury  shall,  from  time 
to  time,  digest  and  prepare  plans  for  the  improvement  and  man- 
agement of  the  revenue  and  for  the  support  of  public  credit 
.  .  .  shall  make  reports  and  give  information  to  either  branch  of 
the  legislature,  in  person  or  in  writing  as  may  be  required,  respect- 
ing all  matters  referred  to  him  by  the  Senate  or  House  of  Repre- 
sentatives or  which  shall  appertain  to  his  oflBice." 

There  are  a  number  of  examples  in  our  early  history  of  execu- 
tive oflScers  appearing  in  the  Senate  for  the  purpose  of  making 
explanations  and  reading  messages  and  papers.  President 
Washington  always  read  his  opening  messages  before  the  two 
houses;  and  appeared  before  the  Senate  to  consult  with  that 
body  about  the  terms  of  treaties  in  process  of  negotiation.  On 
July  22,  1789,  Mr.  Jefferson,  then  Secretary  of  Foreign  Affairs, 
visited  the  Senate,  in  accordance  with  instructions,  and  explained 
the  nature  of  certain  executive  business  before  that  body.  Ex- 
amples of  this  kind  might  be  easily  multiplied,  but  it  is  a  matter 
of  established  history  that  in  the  days  of  the  men  who  framed 
the  federal  Constitution  it  was  a  common  practice  to  maintain 
close  public  personal  relations  between  Congress  and  the  Cabinet 
officers. 

In  1 88 1,  a  Senate  committee,  appointed  for  the  purpose  of 
investigating  the  question  of  the  relation  of  the  executive  to  the 
legislature,  reported  in  favor  of  giving  heads  of  departments  the 
right  to  appear  in  Congress.^  This  committee  urged  that  such  a 
practice  was  no  violation  of  the  principle  of  separation  of  powers; 
that  complete  isolation  of  the  two  departments  would  produce 
either  conflict  or  paralysis.  Though  the  two  departments  of 
government  have  a  separate  existence,  runs  the  report,  "they 
were  intended  to  cooperate  with  each  other  as  the  different 
members  of  the  human  body  must  cooperate  with  each  other  in 
order  to  form  the  figure  and  perform  the  duties  of  a  perfect 
man."  The  introduction  of  heads  of  departments  upon  the 
floor  of  Congress,  the  committee  urged,  would  make  the  infor- 
mation given  to  Congress  more  pertinent  and  conclusive,  and 
would  put  the  members  of  the  legislature  on  the  alert  to  see  that 
executive  influence  was  only  in  p/oportion  to  the  value  of  the 

*  Setiate  Report,  No.  837,  46th  Cong.,  3d  Sess.  (1881). 


The  Powers  of  the  President  213 

information,  and  thus  would  enable  the  public  to  determine 
whether  that  influence  was  exerted  by  partisanship  or  by  argu- 
ment. 

In  answer  to  those  who  urged  that  it  would  institute  an 
unconstitutional  relation  between  the  executive  and  Congress, 
the  committee  reported:  ''  No  one  who  has  occupied  a  seat  on 
the  floor  of  either  house,  no  one  of  those  who  year  after  year  so 
industriously  and  faithfully  and  correctly  report  the  proceedings 
of  the  houses,  no  frequenter  of  the  lobby  or  the  gallery,  can  have 
failed  to  discern  the  influence  exerted  upon  legislation  by  the 
visits  of  the  heads  of  departments  to  the  floors  of  Congress  and 
the  visits  of  the  members  of  Congress  to  the  offices  in  the  depart- 
ments. It  is  not  necessary  to  say  that  the  influence  is  dishonest 
or  corrupt,  but  that  it  is  illegitimate;  it  is  exercised  in  secret  by 
means  that  are  not  pubUc  —  by  means  which  an  honest  public 
opinion  cannot  accurately  discover  and  over  which  it  can  there- 
fore exercise  no  just  control."  ^  In  response  to  the  contention 
that  the  imposition  of  these  quasi-legislative  responsibiUties  upon 
heads  of  departments  would  make  it  impossible  for  them  to  per- 
form their  regular  administrative  duties,  the  committee  recom- 
mended that  under-secretaries  should  be  appointed  to  whom 
should  be  confided  the  routine  business  requiring  only  order  and 
accuracy,  so  that  the  chief  officers  could  confine  their  attention 
to  those  larger  duties  involving  important  policies.  In  spite 
of  these  convincing  arguments,  the  report  of  the  committee  was 
simply  buried  in  the  dreary  waste  of  congressional  documents. 

The  case   against   an   approach  to    parHamentary    govern- 

^  By  the  following  order  issued  November  26,  1909,  President  Taft  pro- 
30sed  to  cut  off  the  subterranean  connection  between  the  subordinates  in  the 
executive  departments  and  Congress:  — 

"It  is  hereby  ordered  that  no  bureau,  office,  or  division  chief,  or  subor- 
iinate  in  any  department  of  the  Government,  and  no  officer  of  the  Army  and 
N^avy  or  Marine  Corps  stationed  in  Washington,  shall  apply  to  either  House 
3f  Congress,  or  to  any  committee  of  either  House  of  Congress,  or  to  any  Mem- 
3er  of  Congress  for  legislation  or  for  appropriations  or  for  congressional  action 
3f  any  kind,  except  with  the  consent  and  knowledge  of  the  head  of  the  depart- 
ment; nor  shall  any  such  person  respond  to  any  request  for  information  from 
iither  House  of  Congress  or  any  committee  of  either  House,  or  any  Member 
Df  Congress,  except  through,  or  as  authorized  by,  the  head  of  his  department." 
\n  attack  was  made  on  this  order,  in  the  House,  on  January  27,  1910;  see 
Congressional  Record  for  January  28,  1910. 


214  American  Government  and  Politics 

ment  has  been  stated  by  President  Lowell  as  follows.^  If  tt 
Cabinet  officers  sat  in  Congress,  the  power  of  the  President  woul 
be  reduced  and  the  chief  control  of  the  administration  would  pas 
to  the  legislature.  If  the  President  were  of  an  opposite  part 
from  that  in  power  in  Congress,  his  administrative  authorit 
would  be  reduced  to  almost  nothing,  for,  in  those  countri( 
where  parUamentary  government  has  been  introduced,  tt 
titular  executive  officer,  whether  he  be  the  King  of  England  ( 
the  President  of  France,  loses  his  political  power.  Furthermor 
deadlocks  between  the  Senate  and  the  House  over  any  mini: 
terial  poUcy  would  inevitably  lead  to  the  supremacy  of  or 
branch  of  the  legislature  and  the  decline  of  the  other.  If  oi 
development  should  follow  the  Hne  indicated  in  other  countri( 
having  parliamentary  government,  the  House  of  Representativi 
would  become  supreme,  the  Senate  would  sink  into  a  mere  opp( 
sition  of  the  House  like  the  House  of  Lords  in  England,  and  tt 
President  would  become  merely  a  nominal  head.  Furthermor 
such  a  fusion  of  executive  and  legislative  departments  woul 
strengthen  the  federal  government  at  the  expense  of  the  state 
and  would  destroy  the  power  of  the  courts  to  declare  statuti 
invahd.  In  other  words,  it  is  contended,  anything  Hke  parh; 
mentary  government  would  make  a  revolution  in  the  who 
framework  of  our  federal  system,  and  dislocate  the  distributic 
of  powers  among  the  three  departments. 

This  argument,  of  course,  does  not  apply  to  the  proposal  ( 
the  Senate  committee  to  allow  cabinet  officers  to  discuss  an 
defend  administrative  policies  in  either  house  of  Congres 
Doubtless  such  moderate  change,  however,  would  be  regarde 
as  a  step  in  the  direction  of  a  political  revolution,  and  we  sha 
probably  continue  to  maintain,  by  subterranean  and  extra-leg; 
methods,  the  connections  between  the  executive  and  legislatui 
which  ^are  maintained  openly  and  in  the  full  light  of  publ: 
scrutiny  in  England  and  in  France. 

^  Essays  on  Government,  pp.  25-45. 


CHAPTER  XI 

THE  NATIONAL  ADMINISTRATION 

The  innumerable  duties  to  be  fulfilled  in  the  execution  of 
federal  law  under  presidential  supervision  are  distributed  among 
nine  great  departments  and  certain  commissions,  established  by 
Congress.  Curiously  enough,  the  Constitution  makes  no  direct 
provision  for  these  branches  of  the  federal  administration;  but 
it  evidently  assumes  their  existence,  for  it  authorizes  the  Presi- 
dent to  require  in  writing  the  opinion  of  the  heads  of  the  execu- 
tive departments,  and  also  gives  Congress  power  to  vest  in  them 
the  appointment  of  inferior  officers.  It  is  on  this  constitutional 
basis,  therefore,  that  Congress  assumes  the  power  to  create  de- 
partments by  law,  regulate  the  duties  of  their  respective  heads 
down  to  the  minutest  details,  and  prescribe  their  internal  organ- 
ization and  the  powers  and  duties  of  the  chiefs  of  even  the  minor 
subdivisions.  Occasionally,  however,  the  President  takes  the 
initial  steps  in  the  organization  of  a  bureau  by  executive  order, 
and  Congress  has  subsequently  sanctioned  the  act  by  a  special 
law,  or  a  regular  appropriation. 

The  Heads  of  Departments 

The  head  of  a  federal  department  occupies  a  position  radically 
different  from  that  of  a  cabinet  officer  in  any  other  country.  He 
is  appointed  by  the  President,^  and  may  be  removed  by  him  or 
by  impeachment.  His  duties,  however,  are  prescribed  minutely, 
not  in  presidential  orders,  save  in  certain  instances,  but  in 
statutes  enacted  by  Congress.  He  is  responsible  to  the  Presi- 
dent for  the  faithful  execution  of  the  law;  but  the  President 
cannot  alter  or  diminish  any  of  the  duties  laid  down  by  Congress, 
and  cannot  prevent  Congress  from  imposing  or  taking  away 
duties  or  from  prescribing  such  minute  details  as  amount  to  a 

*  With  the  Senate's  approval.    Above,  p.  189. 
21S 


2i6  American  Government  and  Politics 

practical  direction  of  the  officer.  "The  President,"  says  Mr. 
John  Sherman,  *'is  intrusted  by  the  Constitution  and  laws  with 
important  powers,  and  so  by  law  are  the  heads  of  departments. 
The  President  has  no  more  right  to  control  or  exercise  the  powers 
conferred  by  law  upon  them  than  they  have  to  control  him  in  the 
discharge  of  his  duties.  It  is  especially  the  custom  of  Congress 
to  intrust  to  the  Secretary  of  the  Treasury  specific  powers  over 
the  currency,  the  pubUc  debt,  and  the  collection  of  the  revenue. 
If  he  violates  or  neglects  his  duty,  he  is  subject  to  removal  by 
the  President  or  impeachment,  .  .  .  but  the  President  cannot 
exercise  or  control  the  discretion  reposed  by  law  in  the  Secretary 
of  the  Treasury,  or  in  any  head  or  subordinate  of  a  department 
of  the  government."  ^  The  President,  as  we  have  seen,  has  the 
power  of  removal,  however,  and  may  exercise  it  for  the  purpose 
of  directing  his  subordinates.  In  actual  practice,  therefore, 
there  are  many  variations  from  Mr.  Sherman's  apparently 
convincing  legal  argument,  especially  when  a  strong-willed 
President  has  a  firm  policy  of  his  own  which  he  is  determined 
to  carry  out.^  Indeed,  the  logical  application  of  his  doctrine 
would  amount  to  a  complete  decentralization  of  the  admin- 
istrative organization  and  a  destruction  of  the  President's  re- 
sponsibility. 

While  it  is  impossible  to  give  here  a  full  account  of  the  duties 
of  each  secretary,  it  seems  desirable  to  consider  some  matters 
which  are  common  to  them  all. 

1.  In  the  first  place,  a  large  appointing  power  to  minor  offices 
is  conferred  by  law  upon  the  departmental  head,  but  this  is  now 
exercised  under  civil  service  rules  which  restrict  his  choice,  in  all 
except  the  important  subordinate  positions,  to  the  candidates  who 
have  qualified  by  examination.^  The  power  of  removal  gener- 
ally accompanies  the  power  of  appointment,  although  there  are 
some  important  exceptions  by  law  and  by  executive  order. 

2.  In  the  second  place,  the  head  of  a  department  enjoys  a. 
certain  range  of  freedom  in  issuing  departmental  orders,  for,  by 
act  of  Congress,  he  may  "prescribe  regulations,  not  inconsistent 
with  law,  for  the  government  of  his  department,  the  conduct  of 
its  officers  and  clerks,  the  distribution  and  performance  of  its 

*  J.  Sherman,  Recollections,  Vol.  I,  p.  449;  Readings,  p.  200. 
^  See  above,  p.  188.  ^  Below,  p.  224. 


The  National  Administration  217 

business,  and  the  custody,  use,  and  preservation  of  the  records, 
papers,  and  property  appertaining  to  it." 

3.  Every  departmental  chief  maintains  a  more  or  less  definite 
relation  to  Congress.  He  must  prepare  annually  a  report  of  his 
department,^  but  this  is  largely  a  formal  compilation,  for  the  mat- 
ters of  policy  or  detail  covered  in  it  have  little  or  no  influence  in 
directing  legislation.  Though  Cabinet  officers  cannpt  be  members 
of  Congress,  there  is,  as  we  have  seen,  nothing  in  the  Constitution 
excluding  them  from  the  right  to  sit  and  speak  there.  Custom 
has  decreed,  however,  that  they  must  bring  their  influence  to  bear 
in  circuitous  ways.  They  often  appear  before  Senate  or  House 
committees  to  explain  measures  or  to  answer  inquiries  as  to  some 
legislation  relating  to  their  respective  departments.^  There  are 
many  instances  of  heads  of  departments  transmitting  to  Congress, 
on  their  own  motion,  completed  drafts  of  bills  which  they  would 
Hke  to  see  enacted  into  law.^  They  sometimes  establish  friendly 
relations  with  the  chairmen  of  prominent  committees,  and  thus 
obtain  a  hearing  for  their  policies  which  would  otherwise  be  denied 
to  them. 

4.  The  head  of  every  department  is  subjected  to  constant 
interruptions  from  outside  parties  such  as  can  come  to  the  chief 
of  no  great  business  organization.  "Washington  wishes  to  see 
evidence  of  democracy  about  the  departments,"  says  a  former 
Secretary  of  the  Treasury,  Mr.  Vanderlip.  "Neither  Senator 
nor  Congressman  is  satisfied  to  cool  his  heels  in  an  ante-room  for 
any  length  of  time,  nor  are  political  leaders  who  come  to  the  capi- 
tol  on  a  mission  likely  to  be  pleased  if  the  Secretary's  engage- 
ments are  such  that  an  appointment  cannot  be  made  with- 
out notice  or  delay.  .  .  .  The  Secretary  of  this  great  de- 
partment must  give  heed  to  innumerable  trifles  such  as  would 
never  reach  the  head  of  even  a  comparatively  small  business 
organization.  Requests  come  from  people  of  importance,  and 
they  must  be  taken  up  with  the  care  which  the  position  of 
such  persons  demands  rather  than  with  any  thought  of  their 
importance  in  relation  to  the  administration  of  departmental 
affairs."  * 


'  The  Report  of  the  Secretary  of  State  is  transmitted  to  Congress  with  the 
President's  annual  message. 

^  Reinsch,  Readings,  p.  37 1 .    ^  Readings,  p.  267.    *  Reinsch,  Readings,  p.  366. 


21 8  Am  eric  an 'Government  and  Politics 

5.  With  the  multipUcation  of  the  official  duties  connected  with 
immigration,  commerce,  transmission  of  mails,  and  taxation,  it 
has  been  found  necessary  to  give  to  the  heads  of  certain  depart- 
ments the  high  authority  of  deciding  finally  upon  cases  appealed 
from  lower  administrative  officials/  For  example,  the  immi- 
gration law  provides  "that  in  every  case  where  an  aUen  is  ex- 
cluded from  admission  into  the  United  States  under  any  law  or 
treaty  now  existing  or  hereafter  made,  the  decision  of  the  appro- 
priate immigration  officers,  if  adverse  to  the  admission  of  such 
alien,  shall  be  final,  unless  reversed  on  appeal  to  the  Secretary 
of  Commerce  and  Labor";  and  the  decision  of  the  Secretary  is 
conclusive  unless  it  can  be  made  apparent  that  he  has  exceeded 
his  jurisdiction  or  violated  the  law.  Customs  officers  also  are 
given  large  powers  in  appraising  the  value  of  imported  goods,  and 
the  Court  has  declined  to  review  the  appraisements  made  by  the 
proper  authorities,  declaring  that  the  interposition  of  the  courts 
in  the  appraisement  of  importations  would  involve  the  collection 
of  the  revenue  in  inextricable  confusion  and  embarrassment. 
The  Postmaster- General  may  issue  fraud  orders  denying  the  use 
of  the  mails  to  persons  and  concerns  who  in  his  opinion  are  en- 
gaged in  fraudulent  transactions;  ^  and  those  affected  have  no 
right  to  appeal  to  the  courts  for  a  review  of  the  facts  lOn  which 
he  bases  his  decisions.^  In  sustaining  this  conclusion,  the  Court 
said : "  If  the  ordinary  daily  transactions  of  the  departments  which 
involve  an  interference  with  private  rights  were  required  to  be 
submitted  to  the  courts  before  action  was  finally  taken,  the  re- 
sult would  entail  practically  a  suspension  of  some  of  the  most 
important  functions  of  government.  ...  It  would  practically 
arrest  the  executive  arm  of  the  government,  if  the  heads  of  de- 
partments were  required  to  obtain  the  sanction  of  the  courts  upon 
the  multifarious  questions  arising  in  their  departments,  before 
action  were  taken  in  any  matter  which  might  involve  the  tem- 
porary disposition  of  private  property.  Each  executive  depart- 
ment has  certain  public  functions  and  duties,  the  performance  of 
which  is  absolutely  necessary  to  the  existence  of  the  government, 
and  it  may  temporarily  at  least  operate  with  seeming  harshness 

^  Readings,  p.  202. 

^  See  below,  chap,  xx;  Readings,  p.  204. 

^  They  may  appeal  on  questions  involving  construction  of  the  law  ;  School 
of  Magnetic  Healing  v.  McNulty,  187  U.  S.  R.,  94. 


The  National  Administration  219 

upon  individuals.  But  it  is  wisely  indicated  that  the  rights  of  the 
pubHc  must,  in  those  particulars,  override  the  rights  of  individ- 
uals, provided  there  be  reserved  to  them  an  ultimate  recourse 
to  the  judiciary."  ^ 

The  Cabinet 

The  heads  of  the  various  departments  compose  the  President's 
Cabinet ;  but  this  is  a  matter  of  custom,  not  of  law,  for  the  Cabinet, 
as  a  collective  body,  has  no  legal  existen,ce  or  powers.  Congress, 
in  creating  the  first  departments  in  1789,  did  not  recognize,  in  any 
way,  the  possibility  of  a  Cabinet  council  composed  of  the  heads. 
Indeed,  the  act  estabhshing  the  Treasury  Department  was  de- 
signed, as  we  have  seen,  to  bring  the  Secretary  under  congres- 
sional control  in  many  ways.  The  Senate,  being  a  small  body, 
was  then  regarded  as  the  real  executive  council  on  account  of  its 
powers  of  ratifying  treaties  and  confirming  appointments. 

Whatever  may  have  been  the  view  of  Congress,  however, 
Washington  regarded  the  four  chief  executive  officials,  including 
the  Attorney- General,  who  was  not  made  head  of  a  department 
until  1870,  as  his  confidential  advisers,  though  the  term  Cabinet 
was  not  immediately  applied  to  them.  He  also  exercised  his 
constitutional  right  of  requiring  opinions  from  the  heads  of  de- 
partments, and  took  them  into  his  confidence  in  all  important 
matters  very  soon  after  the  first  appointments  were  made.  We 
have  direct  evidence  of  Cabinet  meetings  as  early  as  1791,  when 
Washington,  having  departed  on  a  tour  to  the  South,  wrote  to 
the  three  Secretaries:  "I  have  expressed  my  wish,  if  any  serious 
or  important  cases  .  .  .  should  arise  .  .  .  that  the  Secretaries 
for  the  Departments  of  State,  Treasury,  and  War  may  hold  con- 
sultations thereon,  to  determine  whether  they  are  of  such  a  nature 
as  to  demand  my  personal  attendance."  During  his  first  ad- 
ministration, Washington,  by  a  gradual  process,  welded  the  de- 
partmental heads  into  an  executive  council,  and  by  1793  we  find 
the  term  Cabinet  or  Ca]|inet  Council  applied  to  this  group  of 
presidential  advisers.^ 

The  Cabinet  now  meets  regularly  at  stated  times  fixed  by  the 

'  On  this  point,  see  Readings,  p.  202  ff.,  and  an  article  by  Thomas  Reed 
Powell  on  "The  Conclusiveness  of  Administrative  Determinations  in  the  Fed- 
eral Government,"  American  Political  Science  Review  for  August,  1907. 

2  See  Yde  Review,  Vol.  XV,  pp.  160  flf. 


220  American  Government  and  Politics 

President  in  the  rules  of  the  White  House,  printed  in  the  Congres- 
sional Directory}  The  meetings  are  usually  secret,  and  no  record 
is  kept  of  the  transactions.  As  the  special  business  of  each  de- 
partment is  discussed  separately  with  the  President  by  each  offi- 
cer, only  matters  of  weight  relative  to  the  general  policy  of  the 
administration  are  brought  up  for  consideration  at  Cabinet  meet- 
ings.^ Any  important  piece  of  legislation  desired  by  the  Presi- 
dent or  by  a  Cabinet  officer  and  about  to  be  submitted  to  Congress, 
will  very  probably  be  discussed  in  detail,  especially  if  it  concerns 
party  principles.  Votes  are  seldom  taken  on  propositions,  and 
they  are  of  no  significance  beyond  securing  a  mere  expression  of 
opinion.  This  is  illustrated  by  an  incident  related  of  President 
Lincoln,  who  closed*  an  important  discussion  in  the  Cabinet  in 
which  he  found  every  member  against  him,  with  the  announce- 
ment: "Seven  nays,  one  aye,  the  ayes  have  it."  Nevertheless, 
Cabinet  meetings  are  of  service  to  the  administration,  especially  in 
maintaining  harmonious  cooperation  among  the  departments  and 
in  formulating  the  executive  policy. 

The  Cabinet  is  the  President's  council  in  a  very  peculiar  sense, 
for,  having  no  legal  existence  or  warrant,  it  is  not  subjected  as  such 
to  congressional  control.  In  the  first  administration  of  President 
Jackson,  the  Senate  requested  the  transmission  of  a  paper  pur- 
ported to  have  been  read  by  him  to  the  heads  of  the  executive 
departments,  and  he  replied  in  no  uncertain  language:  "The 
executive  is  a  coordinate  and  independent  branch  of  the  govern- 
ment equally  with  the  Senate,  and  I  have  yet  to  learn  under  what 
constitutional  authority  that  branch  of  the  legislature  has  a 
right  to  require  of  me  an  account  of  any  communication,  either 
verbally  or  in  writing,  made  to  the  heads  of  departments  acting 
as  Cabinet  council.  As  well  might  I  be  required  to  detail  to  the 
Senate  the  free  and  private  conversations  I  have  held  with  those 
officers  on  any  subject  relating  to  their  duties  and  my  own."  ^ 

*  One  day  in  the  week  is  known  in  Washington  as  "  Cabinet  Day." 
^  Harrison,  This  Country  of  Ours,  pp.  105  ff. 
'  Richardson,  Messages,  Vol.  Ill,  p.  36.  j 


The  National  Administration  221 


The  Departments  of  National  Administration^ 

Some  indication  of  the  complexity  and  extent  of  the  adminis- 
trative activities  of  the  federal  government  is  afforded  by  the 
following  table  giving  the  several  departments  and  their  chief 
officers  and  subdivisions. 

Department  of  State.  — The  Secretary  and  three  assistant  secre- 
taries; chief  clerk;  counsellor;  seven  bureaus:  diplomatic,  consular, 
indexes  and  archives,  accounts,  rolls  and  hbrary,  appointments,  citi- 
zenship, trade  relations;  and  four  divisions:  far-eastern  affairs,  near- 
eastern  affairs,  Latin-American  affairs,  and  information. 

Department  of  the  Treasury.  —  The  Secretary  and  three 
assistant  secretaries;  chief  clerk;  supervising  architect;  comptroller 
of  the  treasury;  auditors  for  the  Treasury,  War,  Interior,  Navy,  State 
(and  other  departments)  and  Post-Office  Departments;  treasurer  of  the 
United  States,  register  of  the  treasury;  comptroller  of  the  currency; 
director  of  the  mint;  commissioner  of  internal  revenue;  public  health 
and  marine  hospital  service;  revenue  cutter  service;  bureau  of  printing 
and  engraving;  life-saving  service. 

Department  of  War.  — Secretary  of  War  and  assistant  secretary; 
chief  clerk;  general  staff;  adjutant-general  in  charge  of  records; 
inspector-general;  quartermaster-general  (transportation);  com- 
missary-general of  subsistence;  surgeon-general;  paymaster-general; 
chief  of  engineers;  chief  of  ordnance;  judge-advocate-general;  chief 
signal  officer;  chief  of  the  bureau  of  insular  affairs;  board  of  engineers 
for  rivers  and  harbors;  division  of  miUtia  affairs. 

Department  of  Justice. — Attorney-General;  assistants;  solici- 
tor-general; solicitors  for  the  Departments  of  State,  Treasury,  Com- 
merce and  Labor,  and  Interior,  and  solicitor  of  internal  revenue; 
assistant  attorney-general  for  the  Interior  Department;  chief  clerk; 
division  of  accounts;    attorney  in  charge  of  pardons;  appointment 

'  The  principal  functions  of  the  several  departments  and  commissions  are 
discussed  in  their  appropriate  places  in  the  chapters  which  follow;  but  it 
seems  advisable  to  give  this  catalogue  for  the  purpose  of  giving  definiteness  to 
the  framework  of  the  national  administrative  system.  Consult  the  Index. 
The  salary  of  the  secretaries  is  $12,000  each,  except  the  Secretary  of  State, 
who  receives  only  $8,000  a  year  —  a  peculiar  situation  due  to  the  fact  that 
Mr.  Knox  was  a  member  of  the  Senate  at  the  time  of  the  increase  and  could 
not  constitutionally  take  an  office,  the  emoluments  of  which  had  been  in- 
creased during  his  term  in  Congress.  Hence  Congress  found  it  necessary  to 
place  the  salary  of  the  Secretary  of  State  at  the  old  amount  in  order  to 
allow  him  to  take  the  office. 


222  American  Government  and  Politics 

and  disbursing  clerks;  superintendent  of  prisons;  chief  examiner  of 
records;  examiner  of  land  titles. 

Post-Office  Department.  —  Postmaster-General  and  four  as- 
sistant postmasters-general;  ^  chief  clerk;  assistant  attorney-general; 
purchasing  agent;   chief  inspector. 

Department  of  the  Navy. — Secretary  and  assistant  secretary; 
chief  clerk;  eight  bureaus:  navigation,  yards  and  docks,  equipment, 
ordnance,  construction  and  repair,  steam  engineering,  medicine  and 
surgery,  supplies  and  accounts;  judge-advocate-general;  comman- 
dant of  the  marine  corps;  sohcitor. 

Department  of  the  Interior.  —  Secretary  of  the  Interior  and 
two  assistant  secretaries;  chief  clerk;  commissioner  of  patents;  pen- 
sions; land  office;  Indian  affairs;  education;  geological  survey;  and 
reclamation  service. 

Department  of  Agriculture.  —  Secretary  of  Agriculture  and 
assistant  secretary;  chief  clerk;  solicitor,  appointment  clerk;  animal 
industry,  weather,  chemistry,  statistics,  accounts  and  disbursements, 
entomology,  soils,  biological  survey,  plant  industry;  office  of  experi- 
ment stations;  forest  service;  office  of  public  roads;  division  of  publi- 
cations;  librarian  of   the   department. 

Department  of  Commerce  and  Labor.  —  Secretary  of  Com- 
merce and  Labor;  chief  clerk  and  disbursing  clerk;  divisions  of  ap- 
pointments, printing,  and  supplies;  bureaus  of  corporations,  manu- 
factures, labor,  census,  statistics,  fisheries,  navigation,  immigration 
and  naturalization,  and  standards;  coast  and  geodetic  survey;  light- 
house board;    steamboat  inspection  service. 

In  addition  to  these  nine  departments  there  are  two  independent 
commissions:  the  Interstate  Commerce  Commission,  composed  of 
seven  members,  and  the  Civil  Service  Commission,  composed  of  three 
members.  There  is  also  an  International  Bureau  of  American  Re- 
publics, under  the  supervision  of  a  director,  charged  with  fostering  trade 
relations  throughout  the  two  Americas.  Finally  the  Government 
Printing  Office  may  be  mentioned. 

The  Civil  Service 

The  vast  army  of  civil  employees  in  the  executive  service  of  the 
United  States  centred  at  Washington  and  scattered  throughout 
the  whole  American  empire  is  organized  into  a  complicated  hie- 
rarchy headed  by  the  nine  departmental  officers  who  constitute 
the  President's  Cabinet.  The  head  of  each  department,  as  noted 
above,  usually  has  a  number  of  assistants.     There  are,  for  ex- 

^  For  the  complex  duties  of  these  four  assistants,  see  below,  chap.  xix. 


The  National  Administration  223 

ample,  four  assistant  postmasters-general  and  three  assistant 
secretaries  of  state.  The  administrative  work  of  each  depart- 
ment is  distributed  among  a  number  of  bureaus  and  divisions, 
each  with  a  chief  officer,  generally  speaking,  responsible  to  some 
higher  authority.^  In  each  of  the  divisions  or  bureaus  there  are 
a  number  of  clerks,  technical  experts,  and  employees  serving  in  a 
variety  of  capacities.  The  total  number  of  persons  employed  in 
the  Interior  Department,  for  instance,  according  to  the  Secretary's 
report  for  1908,  was  18,770,  of  whom  4,396  were  in  Washington. 
The  officers  and  employees  in  the  whole  executive  civil  service  on 
June  30,  1908,  numbered  approximately  352,000.  Considering 
this  vast  army  with  regard  to  methods  of  appointment,  we  find 
that  it  falls  into  two  groups:  206,637  admitted  on  examination, 
or  under  the  merit  system,  and  145,000  appointed  without 
examination. 

As  we  have  seen  above, ^  even  the  offices  now  filled  by  examina- 
tion were  formerly  subject  to  the  spoils  system  —  that  is,  they 
were  given  principally  to  party  workers  without  special  considera- 
tion for  their  fitness  and  without  any  test  of  abilities.  After 
some  tentative  experiments  at  reforming  this  spoils  system,^  Con- 
gress at  length  passed,  in  1883^  the  Civil  Service  Act/  which  is 
still  the  fundamental  law  governing  the  federal  service.  This 
Act  provides  for  a  Civil  Service  Commission  composed  of  three 
persons,  no  more  than  two  of  whom  shall  be  adherents  of  the 
same  party,  appointed  by  the  President  and  Senate,  and  charged 
with  the  duty  of  aiding  the  President,  as  he  may  request,  in  pre- 
paring suitable  rules  for  competitive  examinations  designed  to 

^  The  relation  of  bureau  chiefs  to  heads  of  departments  is  no  more  scien- 
tifically worked  out  than  the  relation  of  heads  of  departments  to  the  President. 
See  above,  p.  188. 

2  Page  139. 

^  Among  these  tentative  measures  were  (i)  the  law  of  March  22,  1853, 
providing  for  the  classification  of  certain  clerks  in  Washington  and  requiring 
heads  of  offices  to  examine  clerks  before  appointment  —  a  law  which  proved 
to  be  little  more  than  a  farce;  (2)  the  law  of  1864,  providing  examination  for 
thirteen  consular  clerks  in  the  Department  of  State,  and  (3)  the  law  of  March 
3,  187 1,  authorizing  the  President  to  prescribe  regulations  for  admission  into 
the  civil  service  and  to  provide  methods  for  ascertaining  the  fitness  of  candi- 
dates—  a  law  which  promised  well  under  the  administration  of  the  great 
champion  of  civil  service  reform,  George  William  Curtis,  but  fell  to  the 
ground  in  1873,  when  Congress  refused  to  make  the  necessary  appropriations 
for  its  execution.  *  Readings,  p.  208. 


224  American  Government  and  Politics 

test  the  fitness  of  applicants  for  ofiices  in  the  public  service,' 
already  classified  or  to  be  classified  by  executive  order  under  the 
Act,  or  by  further  legislation  of  Congress.  The  Commission 
aids  the  President  generally  in  the  execution  of  the  Act. 

The  Act  itself  ordered  the  Secretary  of  the  Treasury  and  the 
Postmaster- General  to  make  classifications  of  certain  employees 
within  their  respective  jurisdictions,  and  at  the  same  time  pro- 
vided that  the  heads  of  certain  departments  and  ofiices  should, 
at  the  direction  of  the  President,  revise  any  existing  classification 
or  arrangement  of  their  employees  and  include  in  one  or  more  of 
such  classes  subordinate  officers  not  hitherto  classified.  In  other 
words,  the  Act  itself  brought  a  few  offices  under  the  "merit  sys- 
tem," and  left  the  extension  of  the  principle  largely  to  the  dis- 
cretion of  the  President  and  future  acts  of  Congress. 

When  the  law  went  into  force  it  applied  to  only  about  14,000 
places  which  were  then  included  in  the  classified  service.  The 
number  has  been  steadily  increased,  principally  by  executive 
orders,  until  to-day  far  more  than  half  of  all  of  the  offices  in  the 
executive  civil  service  are  filled  by  the  process  of  examination 
and  promotion  under  the  civil  service  rules.  During  his  ad- 
ministration. President  Roosevelt  issued  a  large  number  of  orders 
extending  the  merit  system.  For  example,  in  1901-02,  he  ex- 
tended the  application  of  the  rules  to  the  rural  free  delivery 
service;  in  1902,  at  the  suggestion  of  the  President,  the  employees 
in  the  census  office  were  classified  by  act  of  Congress;  in  1904 
the  positions  in  the  forestry  service  were  made  competitive;  and 
in  1905  the  special  agents  of  the  immigration  bureau  on  duty  in 
foreign  countries  were  included  within  the  classified  service.^ 
This  list  of  Mr.  Roosevelt's  extensions  is  by  no  means  complete 
—  it  merely  illustrates  the  way  in  which  the  President  may 
steadily  widen  the  range  of  the  "  merit  system  "  by  applying  it 
to  one  group  of  government  employees  after  another.  When  Mr. 
Roosevelt  entered  upon  his  administration  there  were  about 
100,000  officials  in  the  classified  service,  and  before  the  close  of 
his  second  administration  the  number  had  increased  to  nearly 
200,000.^ 
.The  Civil  Service  Commission,  under  the  direction  of  the  Presi- 

^  Reinsch,  Readings,  p.  698. 

^  There  was,  it  must  be  remembered,  a  large  increase  in  the  number  of 
government  employees  during  this  period. 


The  National  Administration  225 

dent,  prepares  the  large  variety  of  examinations  required  to  test 
the  fitness  of  candidates  for  the  multitude  of  different  oflftces. 
There  is  a  chief  examiner  at  Washington,  and  there  are  several 
hundred  local  boards  of  examiners  scattered  among  the  states 
and  territories  for  the  purpose  of  supervising  local  civil  service 
examinations.^  The  Act  orders  that  boards  of  examiners  shall 
be  erected  at  such  points  as  to  make  it  reasonably  convenient 
and  inexpensive  for  applicants  to  attend  examinations. 

The  Act  requires  that  such  examinations  shall  be  practical  in 
their  character,  and,  so  far  as  may  be,  relate  to  those  matters  which 
will  fairly  test  the  relative  capacity  and  fitness  of  persons  exam- 
ined to  discharge  the  duties  of  that  branch  of  the  government 
service  to  which  they  seek  to  be  admitted.  In  preparing  the 
examination  papers  it  is  the  practice  of  the  Commission  to  ask 
the  cooperation  of  the  various  departments;  if  a  technical  posi- 
tion is  to  be  filled,  the  department  concerned  usually  notifies  the 
Commission,  and  very  probably  prepares  the  technical  questions 
to  test  the  fitness  of  candidates  for  the  place.  ^ 

The  preparation  of  the  examination  papers  for  a  large  number 
of  positions  is  relatively  a  simple  matter,  for  about  sixty-six  per 
cent  of  federal  offices  covered  by  the  merit  system  are  clerical  in 
character.  Only  about  eleven  per  cent  are  reckoned  as  pro- 
fessional, technical,  scientific,  mechanical,  and  executive.  About 
as  many  of  the  clerical  positions  are  in  the  postal  service  as 
in  all  the  other  branches  of  the  federal  administration  com- 
bined. These  various  positions  are  classified  into  groups  ar- 
ranged according  to  the  minimum  and  maximum  salaries  paid 
in  each;  and  for  examining  purposes  they  are  separated  into  six 
divisions:  clerical,  technical,  executive,  mechanical,  sub-clerical, 
and  miscellaneous. 

Any  citizen  of  the  United  States  may  apply  for  an  examination 
admitting  him  to  the  federal  service.'    For  a  long  time,  owing  to 

^  These  local  boards  are  composed  of  federal  officers  detailed  for  this 
occasional  work. 

^  During  the  year  ending  June  30, 1907,  no  less  than  136,108  persons  were  ex- 
amined; 99,261  passed;  and  44,288  were  appointed  to  the  government  service. 

^  Full  information  may  be  secured  by  directing  a  request  to  the  Civil  Ser- 
vice Commission,  Washington,  D.C.  Citizens  are  excluded  on  the  following 
grounds:  mental  or  physical  incapacity,  excessive  use  of  intoxicants,  service 
in  the  army  or  navy,  dismissal  from  public  service  for  delinquency  during 
the  preceding  year,  and  criminal  or  disgraceful  conduct. 
Q 


226  American  Government  and  Politics 

the  lax  methods  prevailing,  aliens  were  often  admitted  to  govern- 
ment employment,  but  within  recent  years  the  requirement  of  citi- 
zenship has  been  quite  rigidly  enforced.  AppUcants  for  examina- 
tion are  not  even  charged  a  fee,  in  spite  of  the  fact  that  the  Civil 
Service  Commission  has  several  times  recommended  the  estab- 
lishment of  a  nominal  charge  for  the  purpose  of  excluding  the 
many  thousands  of  ill-prepared  persons  who  take  the  examina- 
tions in  a  gambling  spirit  —  nothing  to  lose  and  possibly  some- 
thing to  gain. 

Through  these  examinations  the  Civil  Service  Commission  must 
keep  its  registers  of  eligibles  full,  so  that  it  can  supply  men  of  the 
most  diverse  training  and  experience  w^hen  called  upon  by  the 
several  departments.  On  the  same  day,  there  may  be  demands 
for  clerks,  stenographers,  expert  chemists,  patent  examiners, 
draftsmen,  interpreters,  and  postal  clerks;  and  the  Commission 
must  be  ready  at  once  with  a  list  of  persons  duly  quaUfied  for 
such  positions. 

When  called  upon,  the  Commission  selects  from  the  proper 
register  and  transmits  to  the  department  concerned  the  names  of 
three  candidates  at  the  head  of  the  list,  who  are  (if  possible)  resi- 
dents of  the  state  wherein  the  appointment  falls.  ^  From  this  list 
of  three  any  one  may  be  selected  by  the  appointing  officer,  and 
the  other  names'  are  returned  to  the  Commission  to  be  replaced 
upon  the  register.  If  the  appointing  officer  refuses  to  accept  any 
one  of  the  three,  he  must  give  satisfactory  reasons  for  his  action. 
Every  successful  candidate  is  put  on  probation  for  a  period  of 
six  months;  then  if  his  record  is  good  his  appointment  is  made 
permanent. 

It  should  be  noted,  however,  that  there  are  certain  exceptions 
to  the  operation  of  the  rules  in  the  matter  of  making  appoint- 
ments, (i)  Preference  is  given  to  persons  honorably  discharged 
from  the  military  or  naval  service;  and,  unless  by  direction  of  the 
Senate,  no  person  who  has  been  nominated  for  confirmation  by 
the  Senate  shall  be  required  to  be  classified  or  to  pass  an  examina- 
tion.    (2)  Appointments  to  the  public  service  in  the  depart- 

^  It  will  be  noted  that  "  inferior  "  officers,  under  the  Constitution,  may 
only  be  appointed  by  the  President  alone,  the  heads  of  departments,  or  the 
courts,  as  Congress  may  determine.  As  a  matter  of  fact  the  vast  majority 
of  inferior  officers  are  appointed  by  heads  of  departments  under  Civil  Service 
rules. 


The  National  Administration  227 

ments  at  Washington  shall  be  apportioned  among  the  several 
states  and  territories  and  the  District  of  Columbia  upon  the  basis 
of  population  —  a  principle  which  it  is  impossible  to  carry  out  in 
practice.^  (3)  In  general,  private  secretaries  to  the  heads  of  de- 
partments, assistants,  bureau  chiefs,  and  attorneys  and  persons 
called  upon  to  fill  emergency  employments  are  exempt  from  ex- 
amination.^ 

The  process  of  removal  from  the  federal  service  after  appoint- 
ment is  a  relatively  simple  matter.  The  rules  require  that  no 
person  shall  be  removed  from  a  competitive  position,  "except 
for  such  causes  as  will  promote  the  efficiency  of  the  service." 
When  the  President  or  head  of  an  executive  department  ^  is  con- 
vinced that  any  employee  in  the  classified  service  is  incapable  or 
inefficient,  he  may  remove  such  employee  without  notice.  When- 
ever a  subordinate  officer  recommends  to  the  head  of  an  executive 
department  the  removal  or  reduction  in  grade  of  some  employee, 
the  head  of  the  department  may,  at  his  discretion,  require  that 
notice  be  given  to  the  employee  affected  and  a  reasonable  time 
afforded  him  for  answering  the  same.  The  Civil  Service  Com- 
mission^ contends  that  the  complaint  frequently  heard  to  the 
effect  that  unfit  men  are  protected  against  removal  by  the  rules 
is  untrue.  "On  the  contrary,"  says  the  Commission,  "the  power 
of  removal  for  unfitness  is  with  the  head  of  the  office.  The 
appointing  officer  being  responsible  for  the  efficient  performance 
of  the  work  of  his  office,  it  rests  with  him  to  determine  whether 
such  cause  exists  as  to  require  the  removal  of  an  employee  in 
order  to  promote  the  efficiency  or  discipline  of  his  office." 

The  courts  do  not  interfere  in  cases  of  removal,  on  the  ground 
that  the  right  of  appointing  involves  the  right  of  removal  and 

'  A  clause  was  attached  to  the  census  bill  of  1909  designed  to  eliminate 
many  frauds  connected  with  residence  claims. 

^  The  exemptions  include  a  long  list  of  ofl&cers  filling  five  printed  pages  of 
the  Civil  Service  Report:  two  private  secretaries  to  the  head  of  each  executive 
department  and  one  to  each  assistant  head,  one  private  secretary  to  each  of 
the  heads  of  bureaus  filled  by  the  President  and  Senate,  all  persons  appointed 
by  the  President  without  confirmation  of  the  Senate,  attorneys  and  persons 
receiving  not  more  than  $300  in  compensation,  appraisers  at  the  ports  of 
Boston,  New  York,  and  Philadelphia,  all  persons  in  the  army  transport  service, 
and  so  forth. 

^  With  regard  to  his  own  subordinates,  of  course. 

*  Twenty-fourth  Annual  Report  (1908),  p.  87. 


228  American  Government  and  Politics 

that  the  Civil  Service  Act  limits  the  power  of  removal  in  only 
one  instance  —  refusal  to  contribute  money  or  service  to  a  politi- 
cal party.  In  practice,  however,  whenever  a  large  number  of 
employees  of  the  same  political  faith  are  removed  from  ofiice,  it  is 
presumed  that  the  removal  was  for  political  reasons,  and  the  offi- 
cer making  the  removals  is  required  to  show  that  just  cause  ex- 
isted for  each  removal;  but  the  courts  will  not  intervene. 

Administrative  officers  are  now  required  to  keep  "efficiency 
records"  of  the  employees  imder  their  supervision  and  to  render 
a  periodical  report  giving  the  several  employees'  records  in  dili- 
gence, punctuality,  faithfulness,  and  accuracy.  These  efficiency 
records  are  filed  and  used  as  the  basis  for  promotion  or  expulsion 
from  the  service.  The  difficulties  of  making  up  a  fair  and  just 
record  are  apparent;  and  it  is  also  evident  that  no  mechanical  sys- 
tem of  rating  can  reveal  the  real  capacities  of  the  persons  rated. 
Some  objection  has  been  made  to  this  system  of  efficiency  testing 
on  the  ground  that  it  depends  largely  upon  the  personal  opinion  of 
the  supervising  officer  and  that  it  encourages  serviHty  and  pre- 
tence on  the  part  of  subordinates.  On  the  other  hand,  it  is  urged 
that,  rough  and  unjust  as  these  efficiency  markings  frequently  are, 
they  serve  as  a  valuable  deterrent  to  negligent  and  indolent  em- 
ployees who,  if  left  to  their  own  devices,  would  do  as  badly  as 
they  could. 

Furthermore,  the  law  makes  provision  for  promotions  in  the 
federal  service,  and  some  system  of  efficiency  ratings  seems  in- 
dispensable. Of  course,  competitive  examinations  are  estab- 
Hshed  to  test  the  fitness  of  candidates  for  promotion  as  well  as 
candidates  for  admission,  and  a  list  of  eligibles  for  advancement  is 
kept;  but  candidates  for  promotion  may  use,  in  support  of  their 
claims,  recommendations  from  the  chiefs  under  whom  they  have 
served. 

In  making  promotions,  removals,  and  reductions  in  rank  it  is 
very  difficult  to  exclude  partisan  politics  from  consideration,  but 
attempts  have  been  made  by  act  of  Congress  and  presidential 
orders  to  protect  employees  in  the  classified  service  from  undue 
political  influence,  and  also  to  withdraw  them  from  too  great 
activity  in  partisan  politics.  The  original  Civil  Service  Act 
provides  that  no  person  in  the  public  service  is  for  that  reason 
under  any  obHgations  to  contribute  to  any  political  fund  or  to 
render  any  political  service,  and  that  he  shall  not  be  removed  or 


The  National  Administration  229 

otherwise  prejudiced  for  refusing  to  do  so.  Furthermore,  no 
person  in  the  public  service  has  a  right  to  use  his  authority  to  co- 
erce the  political  action  of  any  person.  No  recommendation  by  a 
Senator  or  a  member  of  the  House  of  Representatives,  except  as 
to  the  character  or  residence  of  an  applicant,  can  be  lawfully  re- 
ceived or  considered  by  any  person  concerned  in  making  exam- 
inations or  appointments  under  the  Civil  Service  Act.  Members 
of  Congress  and  executive,  judicial,  military,  and  naval  officers 
are  forbidden  to  be  involved  in  soHciting  or  receiving  political  as- 
sistance or  contributions  from  any  officer  employed  by  the  United 
States  or  from  any  person  receiving  compensation  from  the 
United  States.^  The  practice  of  soliciting  campaign  contribu- 
tions in  the  buildings  occupied  by  branches  of  the  federal  govern- 
ment is  likewise  forbidden  by  law. 

Other  forms  of  political  activities,  however,  were  left  by  the 
Act  to  the  control  of  the  heads  of  departments,  and  from  time  to 
time  executive  and  departmental  orders  were  issued  for  the  pur- 
pose of  eliminating  abuses  arising  from  the  active  participation  of 
inferior  office-holders  in  party  affairs.  At  length,  in  1907,  politi- 
cal activity  in  the  broadest  sense  was  placed  under  the  super- 
vision of  the  Civil  Service  Commission  by  an  amendment  to  the 
rules,  adopted  by  the  President,  providing  that  "all  persons  who 
by  the  provisions  of  these  rules  are  in  the  competitive  classified 
service,  while  retaining  the  right  to  vote  as  they  please  and  to 
express  privately  their  opinions  on  all  political  subjects,  shall  take 
no  active  part  in  poHtical  management  or  in  political  campaigns." 
This  rule  has  been  construed  by  the  Commission  to  forbid  the  use 
of  official  positions  for  the  benefit  of  any  political  party;  and 
since  its  adoption  it  has  been  interpreted  to  prohibit  the  following 
types  of  pohtical  activity:  "Service  on  poUtical  committees, 
service  as  delegates  to  county,  state,  or  district  conventions  of  a 
poUtical  party,  although  it  was  understood  that  they  were  not 
Ho  take  or  use  any  political  activity  in  going  to  these  conven- 
tions or  otherwise  violate  the  civil  service  rules';  continued 
political  activity  and  leadership;  the  publication  of  a  newspaper 
in  the  interest  of  a  political  party;  membership  in  a  club  taking 
an  active  part  in  political  campaigns  and  management;  the  cir- 
culation of  petitions  having  a  pohtical  object;  service  as  a  com- 

*  There  is,  no  doubt,  more  or  less  violation  in  practice. 


230  American  Government  and  Politics 

missioner  of  elections  in  a  community  where  it  was  notorious 
that  a  commissioner  of  elections  must  be  an  active  politician."  ^ 

The  principle  of  permanent  tenure  involved  in  the  merit 
system  of  appointment  raises  the  question  as  to  what  shall  be 
done  with  government  employees  who  have  passed  the  age  of 
efficient  service.  It  is  only  possible  to  keep  the  civil  service  up 
to  a  high  standard  by  constantly  recruiting  it  from  able  young 
men  in  the  prime  of  life.  This  throws  upon  the  officer  responsible 
for  administration  the  imwelcomeduty  of  reducing  the  pay  and  the 
rank  of  the  older  men  or  discharging  them  altogether.  If  these 
older  men  are  kept  in  service,  it  is  frankly  out  of  a  generous  ap- 
preciation of  their  condition.  They  are  not  only  inefficient  them- 
selves, but  by  holding  high  places  which  they  have  won  by  meri- 
torious services  they  block  the  way  for  the  promotion  of  capable 
and  energetic  younger  men.  "No  man,"  said  the  quartermaster- 
general  recently,  "with  the  slightest  appreciation  of  the  loyalty 
of  these  old,  tried,  and  faithful  employees  will  urge  that  they 
should  be  discharged,  and  a  reduction  in  salary  is  so  dishearten- 
ing to  them  as  to  render  nugatory  their  services  after  such  action. 
No  matter  how  kindly  the  necessity  is  explained  to  them,  reduc- 
tion is  a  severe  blow.  ...  If  they  are  retained  in  the  grades  at- 
tained by  merit  in  the  period  when  they  could  and  did  do  all  or 
more  than  their  duty,  the  effect  on  the  younger  clerks  who  then 
do  the  work  is  depressing  in  the  extreme.  Some  provision  for 
retiring  the  old  clerks  ought  to  be  made.  More  good  effects  on 
administration  would  probably  come  through  provision  for  retire- 
ment than  any  other  one  action  that  could  now  be  taken,  and  its 
effect  would  doubtless  prove  as  beneficial  as  did  the  establishment 
of  the  merit  system."  - 

President  Taft  took  this  view  of  the  situation  in  his  message 
of  December  7,  1909,  in  which  he  declared  that,  in  spite  of  the 
opposition  to  the  establishment  of  civil  pensions,  which  had 
naturally  grown  out  of  the  heavy  burden  of  military  pensions,  he 
was  strongly  convinced  that  no  other  practical  solution  of  the 
difficulties  presented  by  superannuation  in  the  civil  service  could 
be  found,  than  that  of  a  system  of  civil  pensions. 

^  Report  of  the  Civil  Service  Commission  (1908),  p.  ip. 
^Annual  Report  (1905),  p.  65. 


CHAPTER  XII 

THE  CONGRESS  OF  THE  UNITED  STATES 

The  Congress  of  the  United  States  is  composed  of  two  bouses: 
a  Senate  representing  the  commonweahhs  in  their  corporate  ca- 
pacities, and  a  House  of  Representatives  apportioned  among  the 
states  according  to  their  respective  populations.  Two  leading 
motives  were  responsible  for  the  adoption  of  this  bicameral 
system.  In  the  first  place,  it  was  necessary  to  secure  the  support 
of  the  smaller  states  for  the  new  Constitution  by  granting  them 
equality  of  power  in  one  branch  of  the  federal  government.  In 
the  second  place,  the  Fathers  believed  that  some  check  was  nec- 
essary upon  the  impulses  and  passions  of  the  more  popular  body. 
Then,  of  course,  they  had  before  them  the  examples  of  the 
English  Parliament  and  their  colonial  assemblies. 

The  House  of  Representatives 

The  number  of  members  in  the  House  of  Representatives  is 
fixed  by  Congress,  subject  to  the  limitation  that  it  shall  never  ex- 
ceed one  for  every  30,000  of  the  population.  The  first  House 
consisted  of  sixty-five  members,  and,  with  one  exception  (the 
reapportionment  of  1842)  the  number  has  been  regularly  in- 
creased until  it  has  now  reached  391.  At  each  recurrence  of  the 
decennial  apportionment  there  is  a  strong  pressure  on  Congress 
to  add  more  members  to  the  already  unwieldy  assembly.  This 
is  due  to  the  fact  that  those  states  whose  populations  have  in- 
creased only  shghtly,  or  not  at  all,  are  unwilling  to  have  their 
representation  reduced  in  order  that  the  rapidly  growing  states 
may  receive  the  proportion  due  them  under  the  numerical  rule. 
It  must  be  noted  also  that  with  the  growth  of  population  the 
number  of  inhabitants  in  each  congressional  district  has  in- 
creased enormously,  from  about  33,000  in  1793  to  about  200,000 
at  the  apportionment  of  1901.  This  makes  a  constituency  of 
great  size  when  compared  with  the  parliamentary  district  in 
England  or  in  France. 

231 


232  American  Government  and  Politics 

A  member  of  the  House  of  Representatives  must  be  a  citizen 
of  the  United  States  of  at  least  seven  years'  standing;  he  must  be 
not  less  than  twenty-five  years  old  and  an  inhabitant  of  the  state 
in  which  he  is  chosen.  He  cannot  be  at  the  same  time  a  military 
or  civil  officer  of  the  United  States;  and  nearly  all  of  the  states 
have,  by  law  or  constitutional  provision,  forbidden  their  officers 
to  hold  positions  of  trust  under  the  federal  government.  Some 
states  have  gone  further  and  provided  that  each  member  must  be 
a  resident  of  the  district  which  he  represents;  but  this  restriction 
is  regarded  by  most  lawyers  as  unconstitutional,  because  it  adds 
a  quaUfication  to  those  imposed  by  the  federal  Constitution.* 

As  a  matter  of  fact,  however,  it  is  practically  an  unwritten  law 
that  the  member  must  be  a  resident  of  his  district,  although  there 
are  a  few  exceptions,  as  for  example  in  New  York,  where  down- 
town constituencies  are  often  represented  by  men  residing  in  up- 
town districts.  Mr.  Bryce  has  summarized  the  reasons  for  the 
adoption  of  this  general  custom  as  follows :  State  pride,  of  course, 
will  prevent  a  district  from  going  outside  of  the  commonwealth 
for  its  Representative;  the  member  of  the  House  is  relatively 
well  paid,  and  the  party  in  the  district  does  not  want  to  waste 
the  post  on  strangers,  but  prefers  to  reserve  it  to  strengthen  the 
local  organization;  owing  to  the  vast  amount  of  party  work  re- 
quired by  our  complicated  system,  it  is  necessary  to  have  as  many 
offices  as  possible  to  reward  the  workers;  the  Representative  in 
Congress  is  expected  to  know  and  primarily  represent  local  needs 
and  to  secure  harbor  and  river  appropriations,  post-office  build- 
ings, special  protection  for  industries  and  other  favors  for  his 
constituents,  for  Americans  regard  the  Representative  as  a 
spokesman  of  local  interests  rather  than  as  a  statesman,  "  formu- 
lating reason  and  justice  into  law."  It  is,  therefore,  highly  im- 
probable that  any  change  will  be  made  in  this  unwritten  law,  at 
least  in  the  near  future,  notwithstanding  the  fact  that  it  often 
excludes  able  men  from  Congress  because  talent  is  not  distributed 
by  nature  according  to  congressional  districts. 

While  it  seems  clear  that  states  cannot  add  qualifications  to 
those  imposed  by  the  federal  Constitution  on  members  of  Con- 
gress, it  is  conceded  in  practice  that  either  house,  in  the  exercise 
of  its  constitutional  powers  to  be  judge  of  the  elections,  returns, 

^  But  it  is  difficult  to  see  how  it  could  be  set  aside  by  legal  process. 


The  Congress  of  the  United  States  233 

and  qualifications  of  its  members,  may  exclude  persons  on  other 
grounds  than  those  laid  down  in  the  Constitution.^  For  example, 
in  1900,  the  House  excluded  Mr.  Brigham  H.  Roberts  of  Utah  on 
the  ground  that  he  was  a  polygamist. .  The  committee  reporting 
in  favor  of  this  action  contended:  "Must  it  be  said  that  the 
constitutional  provision,  phrased  as  it  is,  really  means  that  every 
person  who  is  twenty-five  years  of  age  and  who  has  been  for  seven 
years  a  citizen  of  the  United  States  and  was  when  elected  an  in- 
habitant of  that  state  in  which  he  was  chosen,  is  eligible  to  be  a 
member  of  the  House  of  Representatives  and  must  be  admitted 
thereto  even  though  he  be  insane  or  disloyal  or  a  leper  or  a  crimi- 
nal? Is  it  conceivable  that  the  Constitution  meant  that  crime 
could  not  disqualify?  The  whole  spirit  of  the  government  re- 
volts against  such  a  conclusion." 

The  minority  of  the  committee  reported,  however,  against  this 
view,  declaring:  "The  adding  by  this  House  alone  of  a  disquahfica- 
tion  not  established  by  law  would  not  only  be  a  violation  of  both 
the  Constitution  and  the  law,  but  it  would  be  a  most  dan- 
gerous precedent  which  could  hardly  fail  to  'return  to  plague 
the  inventor. '  .  .  .  What  warrant  have  you,  when  the  barriers 
of  the  Constitution  are  once  broken  down,  that  there  may  not 
come  after  us  a  House,  with  other  standards  of  morality  and 
propriety,  which  will  create  other  qualifications  with  no  rightful 
foundations?  ...  It  will  no  longer  be  a  government  of  laws 
but  of  men.  To  thus  depart  from  the  Constitution  and  substitute 
force  for  law  is  to  embark  upon  a  trackless  sea  without  chart  or 
compass."^  This  view  was  also  held  by  those  who  claimed  that 
the  proper  way  of  getting  rid  of  Mr.  Roberts  was  to  admit  him  to 
membership  and  then  expel  him  under  the  right  to  eject  by  two- 
thirds  vote;  but  the  party  of  exclusion  triumphed. 

The  Constitution  provides  that  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  house  during 
his  continuance  in  office.  Under  this  provision  several  army 
officers  have  been  excluded  from  the  House  of  Representatives. 
For  example,  in  1803,  Mr.  John  P.  Van  Ness,  a  Representative 
from  New  York,  was  appointed  major  of  the  mihtia  under  the 
authority  of  the  United  States  in  the  District  of  Columbia,  and 


*  It  has  been  done,  however,  in  only  a  few  cases. 

'  Hinds,  Precedents  of  the  House  of  Representatives,  Vol.  I,  pp.  527  fif. 


234  American  Government  and  Politics 

the  committee  on  elections  in  the  House  declared  by  unanimous 
vote  that  by  his  acceptance  he  had  forfeited  his  seat.  The  practice 
of  Presidents  in  frequently  appointing  members  of  the  Senate  and 
House  as  commissioners  to  negotiate  treaties  and  make  investi- 
gations has  raised  the  question  as  to  whether  members  of  Congress 
can  legally  accept  such  positions.  The  judicial  committee  of  the 
Senate  in  reviewing  this  matter  came  to  the  conclusion  that  "  a 
member  of  a  commission  created  by  law  to  investigate  and  report 
but  having  no  legislative,  judicial,  or  executive  powers,  was  not 
_an  officer  within  the  meaning  of  the  constitutional  inhibition."  ^ 
^  Members  of  the  House  of  Representatives  are  apportioned 
among  the  several  states  ^  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  state,  exclusive  of 
Indians  not  taxed  —  subject,  however,  to  the  limitation  that  each 
state  must  have  at  least  one  Representative.  Until  1842,  Con- 
gress left  the  states  to  their  own  devices  in  election  methods,  but 
in  that  year  the  Apportionment  Act  provided,  "that  in  every 
case  where  a  state  is  entitled  to  more  than  one  Representative, 
the  number  to  which  each  state  shall  be  entitled  under  this 
apportionment  shall  be  elected  by  districts  composed  of  con- 
tiguous territory,  equal  in  number  to  the  number  of  Representa- 
tives to  which  said  state  may  be  entitled,  no  one  district  electing 
more  than  one  Representative."  It  is  now  the  rule  of  Con- 
gress to  require  that  congressional  districts  shall  be  composed 
of  "contiguous  and  compact  territory  containing  as  nearly  a:^ 
practicable  an  equal  number  of  representatives,"  each  district 
electing  only  one  Representative,  except  in  the  case  that,  if  the 
state  legislature  fails  to  carry  out  this  exact  provision,  cer- 
tain or  all  of  the  members  may  be  elected  at  large  on  a  general 
ticket.^ 

Notwithstanding  the  intention  of  Congress  to  provide  for  sub- 
stantially equal  congressional  districts,  our  state  legislatures  have 
succeeded  in  creating,  principally  for  partisan  purposes,  the  gross- 

^  Hinds,  Precedents,  Vol.  I,  p.  604. 

^  Alaska,  Arizona,  Hawaii,  New  Mexico,  and  Porto  Rico  have  one  delegate 
each  in  the  House  of  Representatives,  and  the  PhiUppine  Islands  have  two 
delegates.  These  delegates  have  seats  in  the  House,  and  may  speak  there,  but 
they  have  no  vote. 

'  See  Readings  J  p.  218.  North  and  South  Dakota  are  specially  authorized 
by  Congress  to  elect  their  respective  Representatives  at  large. 


The  Congress  of  the  United  States  235 

est  inequalities.  On  comparing  the  total  number  of  votes  cast  in 
congressional  districts,  we  find  the  greatest  discrepancies.  For 
example,  in  1906  a  Mississippi  district  with  a  population  of 
232,174  cast  1540  votes,  while  a  New  York  district  with  a  popu- 
lation of  215,305  cast  29,119  votes.  In  New  York  in  1906  there 
were  58,190  voters  in  the  twenty-third  congressional  district,  and 
only  13,862  voters  in  the  ninth  congressional  district.  These 
differences,  of  course,  are  not  due  entirely  to  the  gerrymander, 
for  representation  is  not  based  on  the  number  of  voters,  but  on 
the  population. 

Even  in  the  matter  of  population,  however,  there  are  great  dis- 
crepancies. The  fifteenth  congressional  district  (RepubHcan) 
in  New  York  (1905)  had  165,701  inhabitants,  while  the  eighteenth 
(Democratic)  had  450,000  inhabitants.  These  discrepancies 
are  partially  due  to  the  necessity  of  recognizing  units  of  local 
government  such  as  counties,  townships,  and  city  blocks,  in  laying 
out  the  districts,  but  they  are  more  especially  due  to  the  desire 
of  the  majority  party  in  each  state  legislature  to  secure  as  many 
of  its  members  as  possible  in  Congress. 

This  misuse  of  the  power  of  creating  congressional  districts, 
known  as  "gerrymandering,"  ^  has  been  devised  as  a  means  by 
which  a  dominant  party  can  make  its  own  vote  go  as  far  as  possible 
in  congressional  elections  and  cause  its  opponent's  vote  to  count 
for  as  little  as  possible.  This  is  done  by  massing  the  voters  of 
the  opposing  party  in  a  small  number  of  districts,  giving  them  over- 
whelming majorities  there,  while  allowing  the  dominant  party  to 
carry  the  other  districts  by  very  small  minorities.  Gerryman- 
dering is  responsible  for  some  curious  poHtical  geography.  There 
is,  for  example,  the  famous  "shoestring  district"  in  one  of  the 
southern  states  where  gerrymandering  has  been  used  to  counter- 
act the  effect  of  the  negro  vote.  There  was  at  one  time  in 
Illinois  the  "  saddle  bag  "  district  comprising  "  two  groups  of  coun- 

^The  term  "gerrymander"  originated  in  Massachusetts.  It  appears  that 
Elbridge  Gerry,  a  distinguished  Democratic  politician  of  his  day,  was  in- 
strumental in  redistricting  his  state  in  such  a  way  that  one  of  the  districts 
had  the  shape  of  a  lizard.  When  an  artist  saw  the  map  of  the  new  district,  he 
declared,  "Why,  this  district  looks  like  a  salamander,"  and  gave  it  a  few 
finishing  touches  with  his  pencil.  The  editor,  in  whose  office  the  map  was 
hanging,  replied,  "Say  rather  a  gerrymander,"  and  thus  an  ancient  party 
practice  was  given  a  new  name.     See  Readings,  p.  219. 


236 


American  Government  and  Politics 


ties  at  different  sides  of  the  state  so  connected  as  to  crowd  as 
many  Democratic  counties  as  possible  into  one  district  and  tkus 
secure  Republican  seats  in  nearby  districts  by  eliminating  the 
vote  of  hostile  localities."^  The  Democrats  in  Indiana  by  a 
shrewdly  arranged  gerrymander  were  enabled  to  elect,  in  1892, 
eleven  congressmen  with  a  total  vote  of  259,190,  leaving  only  two 
congressmen  to  the  Republicans,  who  cast  a  vote  of  253,668,  thus 
requiring  126,834  Republican  votes,  as  against  23,565  Demo- 
cratic votes,  to  elect  one  congressman.^ 

The  district  system  under  the  gerrymander  has  frequently 
resulted  in  the  grossest  misrepresentation  of  party  strength  in  the 

CONGRESSIONAL  DISTRICTS,  SOUTH  CAROLINA,  189a 


lABBCVILL 
*\^     V'  CoiJIKMBIA^''<^.  SUMTER 


•^M 


HOflRT 


)RANG£1 


\  2  - 


An  illustration  of  "  compact  and  contiguous  territory.* 


^  Reinsch,  American  Legislatures,  p.  202. 

^  Commons,  Proportional  Representation,  2d  ed.,  p.  61. 


The  Congress  of  the  United  States  237 

House  of  Representatives.  For  example,  in  1894,  the  Republicans, 
with  a  vote  of  5,461,202,  elected  245  Representatives;  the  Demo- 
crats, with  4,295,748  votes,  elected  104  Representatives,  and  the 
Populists,  with  1,323,644  votes,  elected  7  Representatives,  while 
the  Prohibitionists,  with  182,679  votes,  elected  none.  In  this 
election  the  Republicans,  with  48.4  per  cent  of  the  total  vote, 
elected  68.8  per  cent  of  the  members,  while  the  Democrats,  with 
38.1  per  cent  of  the  vote,  elected  29.2  per  cent  of  the  members, 
and  the  Populists,  with  11.7  per  cent  of  the  vote,  secured,  only 
2  per  cent  of  the  members.  Taking  the  vote  as  a  whole  on 
a  strict  basis  of  equality  of  representation,  the  Republican 
majority  of  134  should  have  been  a  minority  of  7  as  against  all 
other  parties.^ 

The  term  of  the  member  of  the  House  is  two  years  —  a  short 
period  which  has  received  so  much  criticism  recently  that  it  is 
difficult  for  us  to  understand  the  necessity  that  led  the  authors 
of  The  Federalist  to  apologize  for  the  action  of  the  Philadelphia 
convention  in  not  providing  for  annual  elections.  The  system 
of  biennial  elections,  coupled  with  the  practice  of  not  assembling 
a  Congress  until  more  than  a  year  after  its  election,  has  had  a 
most  unfortunate  effect  upon  the  character  of  that  body.  Ordi- 
narily, when  members  take  their  seats,^  their  term  of  office  is 
practically  half  expired;  and  within  a  year,  if  they  expect  to  con- 
tinue in  Congress,  they  must  enter  into  a  campaign  for  renomina- 
tion  and  election.  This  may  have  a  double  effect.  It  diverts  the 
attention  and  energy  of  the  member  from  his  official  duties,  and, 
if  he  is  defeated,  it  leaves  him  disgruntled  and  more  subject  to 
pernicious  influences.  It  is  a  well-known  fact  also  that  no  mem- 
ber of  Congress  can  exert  a  considerable  influence  during  one 
term  of  service,  since  it  requires  a  great  deal  of  practical  experience 
to  discover  the  mysteries  of  congressional  procedure  and  get  a 
hearing  from  the  leaders  in  the  House.^  On  the  other  hand 
there  is  no  provision  for  a  dissolution  of  the  House  or  recall  of 
members,  and  long  terms  might  result  in  Congress  frequently 
misrepresenting  the  country. 

The  time,  place,  and  manner  of  holding  elections  for  Represent- 

^  Commons,  Proportional  Representation,  p.  58.     It  must  be  noted,  how- 
ever, that  the  basis  of  representation  is  not  the  vote,  but  population. 
^  Unless  there  is  an  earher  special  session. 
^Readings,  p.  254. 


238  American  Government  and  Politics 

atives  may  be  prescribed  by  the  state  legislature  subject  to  the  pro- 
vision that  Congress  may  at  any  time  by  law  make  or  alter  such 
regulations.  For  almost  a  hundred  years  congressional  elections 
were  held  at  different  times  and  according  to  the  different  methods 
prevailing  in  the  various  states  —  the  old  system  of  viva  voce 
voting  being  retained  for  a  long  time  in  some  commonwealths. 
At  length,  Congress,  by  laws  passed  in  187 1  and  1872,  provided 
that  congressional  elections  should  be  by  ballot  and  that  they 
shouki  occur  throughout  the  Union  at  the  same  time,  that  is,  on 
the  Tuesday  following  the  first  Monday  in  November.  An 
exception  to  the  uniformity  rule  allows  a  few  states  to  hold 
their  elections  somewhat  earlier,  according  to  their  former 
custom.^ 

Party  machinery  has  been  developed  in  every  state  for  nominat- 
ing candidates  to  the  House  of  Representatives.  Where  the 
older  methods  have  not  been  overthrown  by  primary  legislation, 
candidates  are  nominated  by  district  conventions  of  delegates 
representing  units  of  local  government  within  the  congressional 
districts,  such  as  counties  in  the  regions  more  thinly  populated, 
and  assembly  districts,  townships,  or  wards  in  the  more  thickly 
settled  areas.  In  a  large  number  of  states,  however,  including 
Wisconsin,  Nebraska,  Oregon,  Kansas,  and  Oklahoma,^  the  con- 
vention system  has  been  abolished  altogether,  and  an  official  di- 
rect primary  election  is  provided  for  each  party.  Any  member  of 
any  party  who  wishes  to  be  a  candidate  for  Congress  must  have 
his  name  put  on  the  party  primary  ballot  by  petition,  and  at  the 
primary  election  the  party  voters  are  given  the  opportunity  to 
select  from  among  the  several  candidates  on  this  ballot.^  Repre- 
sentatives-at-large  are  nominated  by  state  conventions  or  by 
state  primaries. 

The  House  of  Representatives  and  the  Senate  are  the  judges 
of  the  election,  returns,''and  qualifications  of  their  own  members, 
and  therefore  contested  elections  are  not  determined  by  a  judicial 
tribunal  as  in  England.     The  House  has  three  committees  on 

^  On  the  qualifications  for  voters  for  Representatives,  see  above,  p.  162, 
and  below,  chap,  xxii,  and  Readings,  p.  399.  They  are  merely  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch  of  the  state  legisla- 
ture. ^  See  below,  chap.  xxx. 

2  When  a  vacancy  occurs  in  the  House  of  Representatives  by  the  death  or 
resignation  of  a  member,  or  in  some  other  way,  a  special  election  is  held. 


The  Congress  of  the  United  States  239 

elections/  whose  duty  it  is  to  investigate  election  contests.  The 
law  requires  any  person  intending  to  contest  an  election  to 
serve  notice  on  the  member  whose  seat  he  claims,  and  to  specify 
the  grounds  upon  which  he  expects  to  rely.  The  member  whose 
seat  is  contested  must  answer.  Copies  of  the  papers  are  trans- 
mitted to  the  House,  and  the  clerk  makes  up  the  records  of  the 
case,  which  he  reports  to  the  House.  These  are  referred  by  the 
Speaker  to  one  of  the  three  committees  on  elections;  testimony 
is  taken;  the  contestants  are  given  an  opportunity  to  be  heard, 
and  to  be  represented  by  counsel ;  and  on  the  basis  of  the  evidence 
and  pleadings,  the  committee  presents  to  the  House  a  report, 
which  is  usually  accepted."  Inasmuch  as  each  committee  on 
elections  is  composed  of  a  majority  of  members  from  the  domi- 
nant party,  a  contested  election,  where  the  case  is  not  too  glaring, 
is  quite  likely  to  be  decided  in  the  interests  of  that  party. 

The  Senate 

The  Constitution  prescribes  that  there  shall  be  two  Senators 
from  each  state,  and  in  the  Amendment  clause  it  provides  that 
no  state,  without  its  consent,  shall  be  deprived  of  equal  represen- 
tation in  the  Senate.  This  rule  of  absolute  equality  grew  out 
of  the  fear  of  Maryland,  Connecticut,  and  Delaware  that  the 
great  commonwealths  of  New  York,  Pennsylvania,  and  Virginia 
would  override  them  in  federal  matters;  and  out  of  apprehension 
entertained  by  the  agricultural  and  slave-owning  states  that  the 
numerical  strength  of  the  manufacturing  and  commercial  states 
would  lead  to  discriminating  legislation.  The  result  of  this 
equality  of  representation  in  the  Senate  is  a  most  glaring  violation 
of  the  democratic  principle  of  distributing  representation  with 
some  regard  to  population.  Thus  it  comes  about  that  nine 
eastern  states,  Maine,  New  Hampshire,  Vermont,  Massachusetts, 
Rhode  Island,  Connecticut,  New  York,  New  Jersey,  and  Penn- 
sylvania, with  a  population  of  over  21,000,000  (1900),  have  only 
eighteen  Senators;  while  nine  western  states,  Montana,  Wyoming, 
Colorado,  Utah,  Idaho,  Washington,  Nevada,  Oregon,  and 
CaUfornia,  with  a  total  population  of  less  than  4,000,000,  have 
the  same  number.     New  York,  with  over  7,000,000  inhabitants, 

*  The  Senate  has  one  committee  on  elections. 

^  The  committee  practically  has  the  power  of  a  court  of  law. 


240  American  Government  and  Politics 

has  two,  while  the  nine  western  states,  with  a  little  over  half  the 
inhabitants,  have  nine  times  the  representation.  Indeed,  it  is 
possible  to  select  fifteen  of  the  smaller  states,  with  about  5,000,000 
inhabitants,  possessing  fifteen  times  the  weight  of  the  state  of 
New  York  in  the  Senate.  "The  senatorial  representatives  of 
those  5,000,000  would  lack  only  a  single  vote  of  the  number 
necessary  to  defeat  some  great  treaty  which  the  Senators  of 
the  other  70,000,000  night  support.  States  having  less  than 
one-sixth  of  the  population  choose  a  majority  of  the  entire  Senate, 
while  more  than  five-sixths  of  the  people  of  the  country  are 
represented  by  a  minority  of  that  body.  The  state  of  Nevada 
under  the  last  census  had  less  than  43,000  people.  If  New  York 
were  permitted  to  have  the  same  proportional  representation  in 
the  Senate,  it  would  have  some  350  Senators."*  In  practice, 
however,  we  do  not  find  an  alignment  of  the  Senators  of  the 
small  states  against  those  of  the  large  states. 

The  qualifications  of  the  Senator  are  fixed  by  the  Constitution. 
He  must  be  not  less  than  thirty  years  old,  an  inhabitant  of  the 
state  for  which  he  is  elected,  and  a  United  States  citizen  of  nine 
years'  standing.  The  same  question  has  arisen  here  as  in  the 
case  of  the  House  of  Representatives,^  whether  the  Senate,  under 
its  power  to  judge  of  the  qualifications  of  its  members,  can  add 
any  to  those  fixed  in  the  Constitution.  The  correct  answer  to 
this  question  seems  to  have  been  made  by  Mr.  Hopkins,  in 
a  speech  of  January  11,  1907,  on  the  proposition  to  exclude 
Mr.  Reed  Smoot  of  Utah,  on  the  ground  that  he  was  a  polyg- 
amist.  Mr.  Hopkins  says  tljat  neither  the  Senate,  Congress, 
nor  a  state  can  add  to  the  qualifications  prescribed  by  the 
Constitution ;  that  the  power  given  to  the  Senate  is  not  to  create 
Senators,  but  to  judge  whether  they  have  the  qualifications  pre- 
scribed by  the  Constitution;  that  the  Senate  has  no  constitu- 
tional authority  to  inquire  into  the  antecedents  and  early^  career 
and  character  of  a  Senator  who  applies  for  admission  with  the 
proper  credentials  of  his  state;  that  no  Senator  has  ever  been 
denied  a  seat  in  the  Senate  of  the  United  States  because  of  any 
lapse  of  career  prior  to  his  election  by  the  state;  and  that  the 
Senate  should  content  itself  with  the  exercise  of  its  power  to 

^  Reinsch,  Readings,  p.  139. 

^  Above,  p.  233.  It  will  be  noted  that  the  Senate  did  not  adopt  the  prac- 
tice of  the  House,  which  was  regarded  as  unconstitutional  in  many  quarters. 


The  Congress  of  the  United  States  241 

expel  a  member  for  disorderly  behavior  whenever  his  conduct 
is  such  as  to  lower  the  standard  of  that  body  or  bring  it  into 
disrepute. 

Under  the  Constitution,  Senators  must  be  elected  by  the  state 
legislatures,  and,  until  1866,  Congress  left  the  several  common- 
wealths to  their  own  devices  as  to  procedure;  but  in  that  year. 
Congress,  under  its  power  to  determine  the  time  and  manner  of 
electing  Senators,  prescribed  a  uniform  method  to  be  followed 
by  all  legislatures.  It  provided  that  the  legislature,  immediately 
preceding  the  expiration  of  the  senatorial  term,  should  proceed 
to  elect  the  member  on  the  second  Tuesday  after  its  meeting.^ 
Each  house  first  takes  a  viva  voce  vote  separately  and  if  one 
person  receives  a  majority  of  the  whole  number  of  votes  cast  in 
each  house,  he  is  declared  elected;  in  case  no  person  receives  a 
majority  at  the  separate  balloting,  or  in  case  either  house  has 
failed  to  act  as  required  by  law,  the  two  houses  must  then  meet 
in  joint  assembly  and  elect  by  viva  voce  vote  and  majority  count. 
Failing  an  election  on  the  first  day,  the  joint  assembly  must  meet 
every  succeeding  day  at  noon  and  cast  one  ballot  until  a  Senator 
is  elected.^ 

Notwithstanding  this  formal  provision  of  law.  United  States 
Senators  are  really  selected  by  party  caucus  —  where  the  system 
of  direct  nominations  has  not  been  adopted.  That  is,  whenever 
there  is  a  vacancy  in  the  Senate,  or  the  term  of  the  Senator  is 
about  to  expire,  it  is  the  practice  of  the  members  of  the  party 
having  a  majority  in  the  legislature  which  is  to  elect  to  meet 
in  caucus  and  agree  in  advance  upon  the  candidate,  whose 
nomination  is  then  merely  ratified  by  the  formal  vote  in  the 
legislature. 

"Deadlocks"  are  of  frequent  occurrence,  however,  in  our 
state  legislatures.  One  of  the  most  famous  occurred  in  the 
Pennsylvania  legislature  in  1899,  when,  on  January  17,  it  began 
balloting  for  the  purpose  of  selecting  a  successor  to  Senator 
Quay,  cast  daily  ballots  until  April  19,  and  then  adjourned  the 
following  day  without  having  effected  an  election.  A  still 
longer  and  more  notorious  contest  was  waged  in  Delaware  by 

'  Readings,  p.  221, 

'  The  same  method  of  election  is  followed  in  the  case  of  a  vacancy  caused 
by  death  or  resignation.  The  certificate  of  election  must  be  sent  by  the 
governor  of  the  state  to  the  President  of  the  United  States  Senate. 

R 


242  American  Government  and  Politics 

Mr.  J.  E.  Addicks,  whose  fight  in  the  legislature  lasted,  with 
intermissions,  from  1895.  to  1903.^ 

During  the  past  quarter  of  a  century  there  has  been  an  extended 
agitation  for  the  popular  election  of  United  States  Senators. 
The  principle  was  adopted  by  the  Democratic  party  at  its  na- 
tional convention  in  Denver,  in  1908,  and  Mr.  Taft  in  his  accept- 
ance speech  announced  himself  in  favor  of  the  reform,  although 
it  had  not  been  specifically  mentioned  in  the  platform  of  his 
party.  This  agitation,  however,  has  got  beyond  the  stage  of 
mere  discussion.  More  than  once  the  House  of  Representatives 
has  passed  a  constitutional  amendment  in  favor  of  popular 
election  of  Senators,  but  it  has  been  unable  to  secure  the  approval 
of  the  Senate.  The  legislatures  of  more  than  two-thirds  of  the 
States  have  passed  resolutions  favoring  the  reform,  but  there 
is  no  indication  that  Congress  will  act  on  their  recommendations. 

Many  states  have  refused  to  wait  on  the  tardy  action  of  the 
amending  process  of  the  federal  Constitution,  and  have  proceeded 
to  accomplish  the  desired  result  by  independent  action.^  United 
States  Senators  are  now  nominated  by  direct  primary  ^  in  the  fol- 
lowing states :  ■  Alabama,  Arkansas,  California,  Florida,  Georgia, 
Idaho,  Iowa,  Kansas,  Kentucky,  Louisiana,  Maryland,  Michigan, 
Mississippi,  Missouri,  Nebraska,  Nevada,  New  Jersey,  North 
Dakota,  Ohio,  Oklahoma,  Oregon,  South  Carolina,  South  Da- 
kota, Tennessee,  Texas,  Virginia,  Washington,  and  Wisconsin. 
The  laws  for  accomplishing  this  radical  reform  (which  is  inciden- 
tally contrary  to  the  letter  and  spirit  of  the  federal  Constitution) 
fall  into  four  general  groups;  but  under  all  of  them  the  legis- 
lature is  supposed  to  ratify  the  will  of  the  voters  expressed  at 
the  polls. 

The  first  mode  (common  in  the  South)  is  illustrated  by  the 
Florida  law  of  1901,  which  is  merely  permissive:  whenever  the 
state  executive,  or  standing  committee  of  any  party,  wishes  to 
take  the  sense  of  the  party  on  the  proper  person  to  present  as 
candidate  for  the  United  States  Senate,  due  notice  must  be  given 

^  In  case  a  vacancy  in  the  Senate  occurs  when  the  state  legislature  is  not 
in  session  the  Governor  may  appoint  a  Senator  to  serve  until  the  legislature 
meets. 

-  The  history  of  the  movement  for  popular  election  of  Senators  up  to  1905 
is  concisely  summarized  by  Professor  G.  H.  Haynes  in  the  PoHtical  Science 
Quarterly  for  December,  1905;  see  also  his  volume  on  the  subject;  for  both 
sides  of  the  question,  see  Readings,  p.  226.  ^  See  below,  chap.  xxx. 


The  Congress  of  the  United  States  243 

the  party  voters;  and  whenever  petitioned  by  a  majority  of  the 
party,  the  committee  in  question  must  avail  itself  of  the  pro- 
visions of  the  law. 

The  second  method,  adopted  by  the  Illinois  law  of  1908,^  pro- 
vides for  a  direct  party  vote  on  the  candidates  for  the  United 
States  Senate,  but  stipulates  "that  the  vote  upon  candidates  for 
United  States  Senator  shall  be  had  for  the  sole  purpose  of  ascer- 
taining the  sentiment  of  the  voters  of  the  respective  parties." 
The  expression  of  opinion  at  the  primary,  however,  may  or  may 
not  be  held  binding  in  practice;  and  was  in  fact  disregarded  by 
the  legislature  of  Illinois  in  the  case  of  the  first  and  only  election 
under  the  law. 

A  third  and  still  more  definite  type  of  direct  nomination  law 
is  illustrated  by  the  recent  Kansas  statute,  according  to  which 
the  candidate  for  United  States  Senator  receiving  the  "highest 
number  of  votes  of  his  party  in  the  greatest  number  of  repre- 
sentative and  senatorial  districts"  is  declared  to  be  the  nominee 
of  his  party  —  "it  being  the  purpose  and  intention  of  this  pro- 
vision," runs  the  act,  "so  far  as  the  same  is  within  the  power  of 
the  legislature  so  to  do,  to  give  all  electors  of  the  state  of  Kansas 
the  right  to  express  their  party  choice  for  United  States  Senator, 
and  to  direct  that  the  same  be  carried  out  by  the  party  members 
of  the  legislature  of  the  state."  Thus  is  established  a  com- 
pulsory state-wide  primary,  the  result  of  which  is  morally  bind- 
ing on  the  legislature. 

The  fourth  plan,  in  force  in  Oregon  and  Nebraska,  practically 
makes  the  direct  election  of  Senators  obligatory  and  certain. 
This  plan  embraces  three  distinct  operations.^  In  the  first 
place,  a  direct  primary  is  held  for  each  party,  at  which  the  mem- 
bers are  permitted  to  choose  by  ballot  the  party  candidate  for 
United  States  Senator.  In  the  second  place,  the  candidates 
of  the  several  parties  are  then  submitted  to  all  the  voters  of  the 
state  at  the  regular  election,  and  the  candidate  (whatever  his 
politics)  who  receives  the  highest  vote  is  declared  to  be  the 
"people's  choice."  To  make  sure  that  the  legislature  will  ratify 
the  people's  choice,  an  expedient  has  been  devised  for  committing 
members  of  the  legislature  in  advance.  Candidates  for  the 
state  legislature  may  indicate  on  the  official  election  ballot 

^  Declared  unconstitutional  in  1909  and  reenacted  in  1910. 
'  For  a  portion  of  this  important  act,  see  Readings,  p.  225. 


244  American  Government  and  Politics 

whether  or  not  they  pledge  themselves  to  vote  for  the  popular 
choice  whatever  his  political  affiliations.  As  a  rule  the  candi- 
dates, wishing  to  catch  votes,  pledge  themselves  in  advance, 
not  knowing  how  the  popular  election  for  the  United  States 
Senator  will  turn  out.  Thus  occurred,  in  1908,  the  strange 
spectacle  of  a  Republican  legislature  choosing  a  Democrat,  Mr. 
Chamberlain,  to  represent  Oregon  in  the  United  States  Senate. 

The  term  of  the  Senator  is  fixed  at  six  years,  and  in  practice 
Senators  are  far  more  frequently  reelected  than  members  of  the 
House  of  Representatives.  At  least  five  Senators,  Benton  of  Mis- 
souri, Morrill  of  Vermont,  Allison  of  Iowa,  Jones  of  Nevada,  and 
John  Sherman  of  Ohio,  served  thirty  years  or  more.  The- ten- 
dency toward  reelection  seems  to  be  more  marked  in  the  smaller 
states,  perhaps  because  competition  is  not  so  keen,  and  it  is  easier 
for  a  Senator  to  maintain  his  influence  over  the  legislature. 

The  terms  of  all  the  Senators  do  not  expire  at  any  one  time,  for 
the  Senate  is  a  continuous  body,  one-third  of  the  members  going 
out  every  two  years,  and,  except  in  extraordinary  cases  arising 
from  deadlocks,  resignation,  or  death,  it  seldom  happens  that  a 
state  legislature  is  called  upon  to  elect  two  Senators  at  the  same 
time.  At  the  first  session  of  the  Senate  in  1789,  that  body  di- 
vided its  membership  by  lot  into  three  classes,  the  seats  of  the 
first  class  being  vacated  at  the  expiration  of  the  second  year,  of 
the  second  class  at  the  expiration  of  the  fourth  year,  and  of  the 
third  class  at  the  expiration  of  the  sixth  year,  thus  making  way 
for  a  renewal  of  only  one-third  of  the  Senate  biennially. 

Members  of  the  Congress  of  the  United  States  are  entitled 
to  certain  privileges  by  virtue  of  their  position.  First  among 
these  may  be  reckoned  compensation.  The  Constitution  pro- 
vides that  Senators  and  Representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  bylaw  and  paid  out 
of  the  treasury  of  the  United  States.  Up  until  185^,  it  was  the 
custom  to  pay  members  a  certain  per  diem  allowance;  ^  in  that 
year  a  salary  of  $3000  per  annum  was  voted;  this  amount  was 
raised  to  $5000  in  1865;  and  increased  in  1873  to  $7500  —  an 
increase  whicK  met  such  a  public  protest  that  it  was  repealed  at 
the  next  session.  In  1907,  however,  the  salary  of  Senators  and 
Representatives  was  again  fixed  at  $7500  per  annum,  to  which 
*  A  salary  was  voted  in  1816,  but  the  law  was  speedily  repealed. 


The  Congress  of  the  United  States  245 

is  added  an  allowance  for  clerk  hire,  stationery,  and  travelling 
expenses/ 

The  second  privilege  enjoyed  by  members  of  Congress  is  free- 
dom from  arrest  during  their  attendance  on  the  sessions  of  their 
respective  houses,  and  in  going  to  and  returning  from  the  same, 
in  all  cases  except  treason,  felony,  and  breach  of  the  peace.  This 
privilege,  as  Story  points  out,  exempts  Representatives  and 
Senators  from  all  processes,  the  disobedience  of  which  is  pun- 
ishable by  imprisonment.  That  is,  a  congressman,  during  the 
period  mentioned  above,  cannot  be  compelled  to  testify  in  a 
court,  serve  on  a  jury,  or  respond  to  an  action  brought  against 
him.  The  term  "breach  of  the  peace,"  however,  extends  to 
''  all  indictable  offences,  as  well  those  which  are  in  fact  attended 
with  force  and  violence  as  those  which  are  only  destructive  to 
the  peace  of  the  government";  and,  therefore,  the  member  of 
Congress  really  enjoys  no  exemption  from  the  ordinary  processes 
of  the  criminal  law.  In  going  to  and  coming  from  Congress  the 
member  is  allowed  reasonable  delays  and  reasonable  deviations 
from  the  nearest  course. 

The  third  privilege  enjoyed  by  members  of  Congress  is  free- 
dom of  speech  during  debate.  The  Constitution  expressly  pro- 
vides that  for  any  speech  or  debate  no  member  of  e^Jher  house 
shall  be  questioned  in  any  other  place.  This  famous  right,  sup- 
posed by  some  persons  to  have  been  designed  to  guarantee  full 
and  free  discussions  of  public  matters  in  debate,  is  really  derived 
from  the  practices  of  the  English  Parliament,  where  it  was  origi- 
nated to  protect  the  members  against  arbitrary  arrest  for  criti- 
cism of  the  king.  According  to  Professor  Ford,  it  was  placed  in 
the  American  Constitution  to  protect  members  against  respon- 
sibility to  their  constituents.-  The  effect  of  this  privilege  is  to 
free  the  members  from  the  liability  to  prosecution  for  libel  or 
slander  for  anything  said  in  Congress,  or  in  committees,  in  official 

*  House  of  Representatives:  (i)  Salary — $7500.  (2)  Mileage.  (3) 
Clerk  hire —  $1500  (this  applies  also  to  members-elect);  the  more  important 
committees  have  separate  clerks  whose  salaries  range  from  $3000  to  $200; 
some  also  have  assistant  clerks  and  a  janitor.  (4)  Stationery.  Sen/Cte: 
(i)  Salary — $7500.  (2)  Mileage.  (3)  Clerk  hire  —  $1800  (only  for  Senators 
who  are  not  chairmen  of  committees) ;  every  committee  has  a  clerk  whose 
salary  varies  from  $5000  to  $2220;  many  also  have  assistant  clerks  and 
messengers.     (4)  Stationery. 

^  Rise  and  Growth  of  American  Politics,  p.  63. 


246  American  Government  and  Politics 

publications,  or  in  the  legitimate  discharge  of  their  legislative 
duties.  Members  of  Congress  also  constantly  act  upon  the 
supposition  that  the  privilege  includes  the  right  to  circulate 
their  speeches,  not  only  among  their  own  constituents,  but  any- 
where throughout  the  United  States. 

The  internal  organization  of  each  house  of  Congress  is  limited 
by  certain  provisions  of  the  Constitution.^  The  Vice-President 
of  the  United  States  is  made  the  presiding  officer  of  the  Senate;  ^ 
neither  house  can  expel  a  member  for  a  breach  of  its  rules  except 
on  a  two-lhirds  vote,  a  quorum  being  present;  each  house  must 
keep  a  journal  of  its  proceedings  and  publish  the  same  from 
time  to  time,  except  such  parts  as  it  may  deem  necessary  to  keep 
secret ;  if  one-fifth  of  the  members  present  in  either  house  demand 
a  record  of  the  yeas  and  nays  upon  the  journal  with  regard  to  any 
question,  that  record  must  be  taken  by  roll-call.  Subject  to 
these  limitations,  each  house  has  the  right  to  elect  its  own 
officers,  compel  the  attendance  of  members,  and  prescribe  rules 
of  procedure  and  discipline. 

The  power  of  Congress,  in  the  course  of  its  proceedings,  to 
interfere  with  private  citizens  —  a  power  which  has,  in  times  past, 
caused  many  serious  constitutional  conflicts  in  England  —  is 
clearly  limited  by  our  Constitution:  neither  house  has  any 
general  power  to  punish  outsiders  for  contempt,  for  such  a  power 
is  judicial  in  its  nature.^  Whenever  the  examination  of  private 
citizens,  however,  is  necessary  to  the  performance  of  regular 
legislative  duties,  it  would  appear  that  Congress  may  require  the 
attendance  of  witnesses,  and  compel  them  to  give  testimony."* 
Each  house  may  also  punish  its  own  members  for  disorderly  be- 
havior, and,  with  the  concurrence  of  two- thirds,  expel  a  member; 
but  it  has  been  held  by  the  Court  that  the  power  of  Congress  to 
punish  its  members  or  private  citizens  is  confined  to  the  session 
in  which  the  condemnation  occurs,  and  cannot  extend  beyond 
imprisonment  during  the  remainder  of  that  session. 

The  quorum  necessary  to  do  business  in  each  house  ^  is  fixed 

^  Burgess,  Political  Science  and  Constitutional  Law,  Vol.  II,  p.  56. 
^  He  has  no  vote  save  in  case  of  a  tie. 
'  Readings,  p.  '138. 

*  Reinsch,  American  Legislatures,  p.  176. 

^  When  the  House  is  once  organized,  the  quorum  consists  of  a  majority 
those  members,  chosen,  sworn,  and  Hving,  whose  membership  has  not  be( 


The  Congress  of  the  United  States  247 

by  the  Constitution  at  a  majority  of  all  the  members,  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  are  authorized  to 
compel  the  attendance  of  absent  members.  This  question  of 
the  quorum  is  no  formal  matter.  It  is  necessary  to  fix  the  number 
at  a  majority  of  the  members  in  order  to  prevent  "snap"  legisla- 
tion by  minorities,  but  the  rule  is  often  attended  with  serious  in- 
conveniences. 

For  a  long  time  it  was  a  common  practice  for  the  minority 
party  in  the  House  of  Representatives,  whenever  it  desired  to  delay 
business,  to  refuse  to  answer  the  roll-call,  and  thus  frequently 
compel  an  adjournment,  on  the  ground  that  there  was  no  quo- 
rum present,  until  a  quorum  could  be  mustered.  To  stop  this 
"filibustering,"  as  these  dilatory  tactics  were  called.  Speaker 
Reed,  in  January,  1890,  held  that  members  present  in  the  House 
and  declining  to  answer  should  be  counted  present  in  determin- 
ing the  question  of  a  quorum.  Shortly  afterward  the  House 
embodied  this  principle  in  a  rule  authorizing  the  clerk,  on  de- 
mand of  a  member  or  at  the  suggestion  of  the  Speaker,  to  count 
as  present  those  physically  present  but  refusing  to  answer  the 
roll-call.  The  present  method  of  marshalling  a  quorum  and 
deahng  with  delinquent  members  is  illustrated  by  this  brief  ex- 
tract from  the  Congressional  Record:  — 

Mr.  Williams:  Mr.  Speaker,  I  make  the  point  of  order  that  there 
is  no  quorum  present.  ... 

The  Speaker:  The  Sergeant-at-Arms  will  close  the  doors  and  bring 
in  the  absentees,  the  clerk  will  call  the  roll,  and  those  in  favor  of  the 
passage  of  the  bill  will,  as  their  names  are  called,  answer  'aye,'  and 
those  opposed  will  answer  'no,'  and  those  present  and  not  voting  will 
answer  'present.'  .  .  . 

Assistant  Sergeant-at-Arms  Pierce:  Mr.  Speaker,  in  accord- 
ance with  the  rules  of  the  House  and  the  warrant  of  the  Speaker,  I 
present  at  the  bar  of  the  House,  under  arrest,  Mr.  Buckman  and  Mr. 
Rucker. 

The  Speaker  (pro  tempore) :  The  gentlemen  will  be  noted  as  pres- 
ent and  discharged  from  arrest. 

.  .  .  Does  the  gentleman  from  Minnesota  desire  to  vote? 

Mr.  Buckman:   I  vote  'aye.'  ^ 

vacated  by  resignation  or  by  the  action  of  the  house.  Hinds,  Precedents^ 

Vol.  IV,  p.  62.     When  a  pxjint  of  order  is  made  with  regard  to  the  quorum  it 

must  be  that  no  quorum  is  present,  not  that  no  quorum  has  voted.    Ibid. ,  p.  79. 

^  Congressional  Record,  Vol.  XL,  part  8,  p.  7585   (59th  Cong.,  ist  Sess.). 


24^  American  Government  and  Politics 

The  Constitution  requires  an  annual  session  of  Congress,  and 
provides  that  it  shall  begin  on  the  first  Monday  in  December, 
unless  Congress,  by  law,  shall  appoint  a  different  day.  Each 
Congress,  therefore,  has  normally  two  sessions.  The  first, 
known  as  the  long  session,  begins  in  December  of  each  odd 
year,  1909,  1911,  1913,  etc.,  and  extends  theoretically  until 
the  following  December,  though  as  a  matter  of  practice  it  is 
usually  adjourned  sometime  in  the  spring  or  summer  —  in  1890 
the  long  session  was  not  adjourned  until  the  first  of  the  following 
October.  The  second  session  of  each  Congress  begins  in  Decem- 
ber of  each  even  year,  1908,  191  o,  1912,  etc.,  and  extends  until 
the  following  March  4.  Every  Congress,  therefore,  expires 
at  noon  on  March  4  of  each  odd  year,  thus  giving  the  Presi- 
dent at  the  very  opening  of  his  administration  a  new  Congress. 
By  postponing  the  session  until  autumn  the  President  has  time 
to  prepare  for  his  legislative  duties. 

It  will  be  noted  that,  according  to  this  arrangement,  a  member 
of  the  House  of  Representatives  does  not  take  his  seat  until  more 
than  a  year  after  his  election;  that  is,  he  is  elected  in  November 
of  the  even  year,  and,  unless  a  special  session  is  called,  does  not 
begin  his  legislative  work  until  one  year 'from  the  December 
iijimediately  following.  Thus  it  happens  that  an  expiring  House 
sits  for  about  four  months  after  the  election  of  the  members  of 
the  new  House,  and  an  important  measure  may  be  passed  by  a 
party  which  the  country  has  voted  down  at  the  preceding  elec- 
tion. Congress  may,  accordingly,  enact  laws  opposed  to  the 
latest  expression  of  popular  will.  "Under  the  present  law," 
said  Mr.  Shafroth,  formerly  a  member  of  Congress,  "a  Repre- 
sentative in  Congress  who  has  been  turned  down  by  the  people 
legislates  for  that  people  in  the  second  regular  session.  A  man 
who  has  been  defeated  for  reelection  is  not  in  a  fit  frame  of  mind 
to  legislate  for  the  people.  There  is  a  sting  in  defeat  that  tends 
to  engender  the  feeling  of  resentment,  which  often  finds  expression 
in  the  vote  of  such  members  against  wholesome  legislation. 
That  same  feeling  often  produces  such  a  want  of  interest  in  pro- 
ceedings as  to  cause  the  members  to  be  absent  nearly  all  the 
second  session.  ...  It  is  then  that  some  are  open  to  propositions 
which  they  would  never  think  of  entertaining  if  they  were  to  go 
before  the  people  for  reelection.  It  is  then  that  the  attorney- 
ship of  some  corporation  is  often  tendered,  and  a  vote  is  after- 


The  Congress  of  the  United  States  249 

ward  found  in  the  Record  in  favor  of  legislation  of  a  general  or 
special  character  favoring  corporations."  ^ 

Special  sessions  of  Congress  may  be  called  by  the  President 
under  his  power  to  convene  either  house  or  both  of  them  on 
extraordinary  occasions.  This  has  been  done  a  number  of  times, 
the  most  noteworthy  occasjpn  being  the  call  of  July  4,  1861, 
to  prepare  for  the  Civil  War,  and  the  most  recent  being  the  con- 
vening of  Congress  by  President  Taft  in  March,  1909,  for  the 
purpose  of  revising  the  tariff.  The  Senate  is  often  called  at 
the  beginning  of  a  new  administration  to  confirm  appointments. 

No  provision  is  made  in  the  Constitution  whereby  members 
of  Congress  can  be  instructed  by  their  constituents,  and  it  is  held 
by  many  American  publicists  that  a  representative,  though  chosen 
by  a  district,  is  in  reality  a  member  of  a  national  legislature 
bound  to  act  on  a  broadly  national  poHcy.  In  practice,  however, 
this  theory  is  not  always  observed,  for  Senators  and  Representa- 
tives are  often  instructed  by  the  legislatures  of  their  states  in 
solemn  resolutions.^  There  is,  of  course,  no  penalty  for  violating 
these  instructions,  because  the  state  legislature  cannot  compel 
the  resignation  of  a  member  of  Congress.  Nevertheless  every 
congressman  is  extremely  sensitive  to  the  wishes  of  the  leaders 
of  his  party  in  his  community.. 

The  difference  in  the  organization  of  the  two  houses  makes  it 
necessary  to  say  a  few  words  by  way  of  comparison.^  The  Senate 
is,  of  course,  the  smaller  body,  being  composed  of  ninety-two 
members,  as  against  391  members  in  the  House  of  Representa- 
tives. The  Senate,  generally  speaking,  is  also  composed  of  older 
men  and  men  of  wider  political  experience.  The  Senators  as  a 
rule  have  been  in  some  branch  of  state  government  or  in  the 
House  of  Representatives.  As  the  term  of  service  is  longer 
and  the  chances  for  reelection  greater,  the  Senate  usually  con- 
tains a  relatively  larger  number  of  political  experts,  acquainted 
not  only  with  the  problems  of  law-making,  but  also  with  the 
inner  workings  of  the  federal  government.  The  influence  of  the 
Senators  is  also  augmented  by  their  position  as  party  leaders 

'  Shafroth,  "When  Congress  Should  Convene,"  North  American  Review, 
Vol.  CLXIV. 

^  Readings,  p.  233. 

'  For  the  original  purpose  of  the  Senate,  see  Readings,  p.  222. 


250  American  Government  and  Politics 

within  their  respective  states.  They  have,  as  we  have  seen,  a 
large  power  in  appointing  to  federal  office;  and  sometimes  they 
are  able  to  construct  political  machines  of  extraordinary  strength.^ 
They  usually  have  great  weight  in  selecting  delegates  to  national 
party  conventions,  and  in  fact  they  are  largely  responsible  for 
the  predominance  of  the  federal  office-holding  element  in  those 
assemblies.  This  command  over  party  resources  within  their 
states  enables  the  Senators  to  bring  more  or  less  pressure  on  the 
members  of  their  party  in  the  House  of  Representatives.  When 
the  state  organization,  in  close  touch  with  its  Senator  or  Senators, 
adopts  a  policy,  it  is  usually  wise  for  the  member  of  the  House 
of  Representatives,  if  he  expects  further  party  favors,  to  fall  in 
line  with  the  poUcy.- 

This  connection  between  the  Senate  and  political  leadership 
has  resulted  in  bringing  into  that  body  a  large  number  of  men 
whose  principal  claim  to  the  office  is  the  power  to  manipulate 
the  state  political  machinery.  "The  dominating  influence  of  the 
Senate  in  this  matter  was  never  more  clearly  shown  than  in 
the  Republican  convention  of  1900.  Both  the  temporary  and 
the  permanent  chairmen  were  Senators;  the  four  nomination 
speeches  were  made  by  Senators;  and  there  were  seven  Senators 
on  the  most  important  committee,  that  on  Resolutions,  which 
drafted  the  national  platform.  The  National  Committee  ap- 
pointed by  the  convention  contained  five  Senators,  among  them 
Hanna  (as  chairman)  and  Quay.  The  advisory  council  appointed 
by  the  National  Committee  had  three  senatorial  members, 
among  them  Piatt  and  Depew;  while  Hanna,  Quay,  and  Scott 
were  members  of  the  Executive  Committee.  So  well  organized 
was  the  senatorial  group  at  this  time,  that  the  selection  of  the 
presidential  candidate  was  largely  determined  by  their  discre- 
tion, both  in  1896  and  in  1900."^ 

The  political  power  of  the  Senate  is  greatly  augmented  by  its 
\  control  over  treaties  and  appointments.'* 

The  Senate  also  derives  no  little  influence  through  the  connec- 
tion of  some  of  its  members  with  those  powerful  economic  inter- 
ests which  have  operated  largely  through  ^the  extra-legal  poUt- 

^  Readings,  p.  128. 

^  See  Article  by  H.  L.  Nelson,  "The  Overshadowing  Senate,"  Century, 

Vol.  LXV,  p.  513. 

'  See  Reinsch,  American  Legislatures,  p.  121.       ■•  See  above,  pp.  191,  196. 


The  Congress  of  the  United  States  25 1 

ical  organizations  of  the  states.*  A  great  deal  of  severe  criticism 
has  been  launched  at  the  Senate  on  this  account;  it  has  been 
named  by  journalists,  "the  millionaire's  club."  As  a  matter  of 
fact,  many  of  the  Senators  are  wealthy,  but  no  discriminating 
or  intelligent  critic  beHeves  that  any  considerable  number  of 
them  are  corrupt  or  men  whose  ideal  is  the  use  of  their  ofl5ce  for 
the  purpose  of  augmenting  their  personal  riches.  However,  the 
Senators,  as  corporation  lawyers  and  leaders  in  state  poHtics,  are 
necessarily  brought  into  close  touch  with  great  corporate  inter- 
ests, and  as  the  hand  is  subdued  to  the  dye  in  which  it  works, 
their  views  of  government  are  colored  by  the  economic  environ- 
ment in  which  they  move.  "It  is  natural,"  says  Professor 
Reinsch,  "that  the  Senators  should  look  upon  political  matters 
from  the  vantage  ground  of  their  special  experience  and  of  the 
interests  with  which  they  have  been  connected.  There  need 
be  in  this  no  suspicion  of  direct  corruption;  there  may,  in  fact, 
often  exist  a  conviction  of  absolute  impartiality.  Yet  their 
attitude  of  mind  and  of  temper  is  nevertheless  characterized  by 
that  conservatism  —  often  exaggerated  —  of  the  man  to  whom 
is  intrusted  the  management  of  great  economic  interests.  .  .  . 
There  are  Senators  whose  controUing  purpose  seems  to  be  to 
protect  and  advance  the  interests  of  particular  combinations  of 
capital  without  any  regard  to  the  broader  principles  of  states- 
manship or  even  to  their  plain  duty  as  representatives  of  the 
commonwealth."^  On  the  other  hand,  President  Woodrow 
Wilson  believes  that  the  Senate  "represents  the  country,  as 
distinct  from  the  accumulated  populations  of  the  country,  much 
more  fully  and  much  more  truly  than  the  House  of  Representa- 
tives does."^ 

Whatever  may  be  the  conclusion  on  this  point,  there  can  be  no 
doubt  that  the  Senate  is  assuming  an  ever  larger  share  in  shaping 
federal  legislation.  The  unlimited  debate  in  the  Senate  enables 
each  member  to  hold  up  legislation,  and  especially  appropriation 
bills,  in  favor  of  any  particular  interest  which  he  may  represent. 
Though  the  Constitution  provides  that  revenue  bills  shall  orig- 
inate in  the  House  of  Representatives,  as  a  matter  of  fact  the 
Senate,  as  we  shall  see,  has  an  equal,  and  in  many  instances  a 

*  See  Goodnow,  Politics  and  Administration,  pp.  251  ff. 

^American  Legislatures,  p.  124. 

^Constitutional  Government  in  the  United  States,  p.  116. 


252  American  Government  and  Politics 

far  greater,  power.  As  a  matter  of  practice,  also,  the  Senate 
usually  increases  the  House  appropriations,  thus  violating  the 
ancient  principle  that  burdens  should  be  laid  by  those  who  are 
nearest  to  the  tax-payers.  The  technical  skill  of  the  Senators, 
their  long  experience,  and  their  superior  legal  talents  frequently 
enable  them  to  overshadow  the  House  as  a  law-making  body. 
Furthermore,  owing  to  their  relatively  small  number,  they  are 
able  to  give  to  measures  more  careful  consideration;  and  for 
this  reason  some  of  the  best  of  our  legislation,  at  least  on  the 
technical  side,  comes  from  the  Senate  rather  than  from  the 
House. 


CHAPTER  XIII 


THE   POWERS   OF   CONGRESS 


The  Congress  of  the  United  States  is  limited  to  the  exercise 
of  the  powers  enumerated  in  the  Constitution  and  the  use  of  the 
nieans  necessary  and  proper  to  carry  them  into  execution.  In 
this  regard,  it  stands  in  sharp  contrast  tothe^Fnglish  Parliament 
—  King,  Lords,  and  Commons.  The  power  and  jurisdiction  of 
that  great  assembly,  as  Blackstone  tersely  puts  it,  "is  so  tran- 
scendent and  absolute  that  it  cannot  be  confined,  either  for  causes 
or  persons,  within  any  bounds.  .  .  .  Ij;  hath  sovereign  and 
uncontrolled  authority  in  making,  confirming,  enlarging,  restrain- 
ing, abrogating,  repealing,  reviving,  and  expounding  laws  con- 
cerning matters  of  all  possible  denominations,  ecclesiastical,  or 
temporal,  civil,  miUtary,  maritime,  or  criminal.  ...  It  can 
regulate  or  new  model  the  succession  to  the  crown,  as  was  done 
in  the  reign  of  Henry  VIII  and  WiUiam  III.  It  can  alter  the 
estabHshed  religion  of  the  land,  as  was  done  in  a  variety  of 
instances  in  the  reigns  of  Henry  VIII  and  his  three  children.  It. 
can  change  and  create  afresh  even  the  constitution  of  the  king- 
dom and  of  Parliaments  themselves,  as  was  done  by  the  act  of 
Union  and  the  several  statutes  for  triennial  and  septennial  elec- 
tions. It  can  in  short  do  everything  that  is  not  naturally  impos- 
sible, and  therefore  some  have  not  scrupled  to  call  its  power,  by 
a  figure  rather  too  bold,  the  omnipotence  of  Parliament.  True  it 
is,  that  what  ParHament  doth,  no  authority  upon  earth  can  undo." 

Compared  with  this  omnipotence,  the  powers  conferred  upon 
Congress  by  the  Constitution  seem  few  indeed;  and,  as  a  matter 
of  fact,  most  of  the  great  questions  which  have  agitated  Great 
Britain  during  the  last  century  — ^^the  extension  of  the  suffrage, 
the  regulation  of  factories  and  labor^  the  provision  of  popular 
education,  the  estabUshment  of  old-age  pensions  —  do  not  come 
within  the  range  of  federal  authority  at  all,  but  are  consigned 
to  state  legislatures  and  constitutional  conventions.  Neverthe- 
less, Congress  enjoys  no  slight  power,  and  the  swiftly  multiply- 
ing interstate  relations,  over  which   it   has   a  wide   authority, 

253 


254  American  Government  and  Politics 


^ 


are  rapidly  extending  its  control  to  social  and  economic  matters 
of  the  most  fundamental  character. 

This  restriction  of  legislative  power  by  written  law  has  a  pro- 
found influence  on  the  debates  and  deUberations  of  Congress, 
because  every  important  controverted  measure  before  that  body 
is  sure  to  be  declared  unconstitutional  by  some  one.  A  measure 
may  be  wise,  expedient,  and  even  necessary,  but  if  it  is  clearly 
outside  the  powers  of  the  legislature,  it  is  useless  to  discuss  it. 
If,  however,  there  is  any  doubt  as  to  the  constitutionality  of  a 
measure,  it  is  sure  to  be  the  subject  of  searching  inquiry  and 
exposition  on  the  part  of  the  skilled  lawyers  in  Congress.  Some 
of  the  greatest  legislative  discussions  in  our  national  history, 
including  the  celebrated  Webster-Hayne  debate  on  Footers 
Resolution,  have  been  over  questions  of  constitutionality.  It 
often  happens  that  the  original  proposal  itself  is  lost  sight  of  in 
the  tortuous  windings  of  historico-legal  speculations,  as  was 
indeed  the  case  in  the  controversy  just  mentioned.  The  ten- 
dency to  lengthy  constitutional  disquisition  is  especially  marked 
in  the  Senate,  where  debate  is  less  restricted,  and  there  are  more 
lawyers  of  distinction  than  in  the  House.  These  discussions  are 
often  of  a  high  order  and  of  undoubted  value  in  expounding 
the  terms  of  the  Constitution,  but  they  are  also  quite  as  often 
mere  displays  of  black-letter  lore  or  personal  vanity.  More 
than  once  the  country  has  been  impatient  at  these  diffuse  lucu- 
brations, rightly  suspecting  that  many  opposing  members  had 
first  come  to  their  conclusions  on  the  merits  of  the  bill  under 
consideration,  and  then  sought  constitutional  objections  to  it. 
More  than  once,  also,  these  debates  have  only  added  confusion 
to  what  seemed  perfectly  clear  and  simple.  "If  we  must  wait 
until  the  great  constitutional  lawyers  agree  upon  any  subject," 
exclaimed  Mr.  Bourke  Cockran  in  the  House,  "it  is  plain  that 
we  would  never  take  a  step  in  any  direction.  We  would  stand 
paralyzed  at  the  threshold  of  every  legislative  enterprise,  amazed 
and  bewildered — :  puzzled  to  distinguish  amid  the  din  of  their 
vociferation  how  much  of  it  is  advice  to  us  and  how  much  of  it 
is  denunciation  of  each  other.  I  defy  any  man  to  define  Congress 
itself  according  to  the  constitutional  lawyers,  after  he  has  read 
three  of  their  speeches."  ^ 

^  Reinsch,  Readings,  p.  256. 


The  Powers  of  Congress  255 

Broadly  speaking,  there  are  three  views  of  the  Constitution 
which  may  be  taken  by  any  member  of  Congress  in  deciding 
upon  a  controverted  constitutional  question.  The  first  of 
these  is  known  as  "strict  construction,"  —  a  view  which  would 
restrict  the  powers  of  Congress  to  the  bare  letter  of  the  written 
instrument,  and  confine  the  means  of  carrying  its  powers  into 
execution  to  those  absolutely  and  imperatively  necessary.  This 
theory  of  interpretation  was  applied  by  Jefferson  in  his  opinion 
on  the  constitutionaHty  of  a  federal  bank,^  and  was  later  used 
with  great  acumen  by  his  party  as  the  moral  justification  for 
their  opposition  to  the  FederaUsts.^  During  the  long  contro- 
versy over  slavery,  it  was  the  chief  reliance  of  southern  statesmen 
in  resisting  the  northern  pressure  on  Congress  to  use  its  powers 
as  fully  as  possible  in  restricting  the  spread  of  slavery  to  the 
territories.  With  the  disappearance  of  the  old  party  antagonisms 
since  the  Civil  War,  there  have  not  been  many  occasions  to  call 
the  strict  construction  view  into  party  services.  The  Democratic 
party,  it  is  true,  occasionally  appears  to  oppose  the  encroach- 
ments of  federal  authority,  but  its  concrete  legislative  proposals 
can  hardly  be  regarded  as  consonant  with  a  narrow  conception 
of  the  Constitution. 

The  second  view  of  the  powers  of  Congress,  originally  assumed 
by  the  Federalist  party  and  taken  on  various  occasions  by  all 
parties,  as  their  interests  have  required,  is  that  of  "Hberal  con- 
struction." The  adherents  to  this  doctrine  deny  that  there  is 
any  warrant  in  the  Constitution  for  taking  the  narrow  view,  and 
they  lay  great  stress  on  that  clause  of  the  Constitution  which 
authorizes  Congress  to  make  all  laws  necessary  and  proper  for 
carr3dng  into  execution  the  powers  expressly  enumerated.  They 
accordingly  take  a  generous  view  of  the  enumerated  powers,  and 
then  interpret  the  words  "necessary  and  proper"  to  mean 
"highly  useful  and  expedient."^  Under  this  construction,  a 
national  bank  was  created,  American  industries  have  been  pro- 
tected, national  highways  built,  paper  money  issued,  and  irriga- 
tion, reclamation,  and  other  large  schemes  of  public  improvement 
undertaken.'*  Only  under  this  conception  of  the  Constitution  has 
the  federal  government  been  made  in  any  way  adequate  to  the 
exigencies  of  a  national  system  of  economy. 

*  Readings,  p.  237.  ^  Ibid.,  p.  93. 

^  Ibid.,  p.  240.  *  Ibid.,  pp.  66  and  241. 


256  American  Government  and  Politics 

The  third  vieW  of  the  proper  attitude  to  be  taken  by  Congress 
in  considering  the  constitutionality  of  any  legislative  proposition, 
and  one  which  has  been  quite  generally  taken,  consciously  or  un- 
consciously, by  the  liberal  constructionists,  was  thus  stated  by 
Mr.  Bourke  Cockran,  during  a  debate  in  the  House:  "It  seems 
to  me  that  the  duty  of  Congress  is  to  examine  closely  the  con- 
dition of  the  country  and  keep  itself  constantly  informed  of  every- 
thing affecting  the  common  welfare.  Wherever  a  wrong  is  found  to 
exist  with  which  the  nation  can  deal  more  effectively  than  a  state, 
it  is  the  business  of  Congress  to  suggest  a  remedy.  .  .  .  Our  first 
step  must  be  in  the  direction  of  legislation.  The  only  way  we  can 
ascertain  definitely  whether  a  law  which  we  believe  will  prove  Effec- 
tive is  constitutional  or  unconstitutional  is  not  by  abandoning 
ourselves  to  a  maelstrom  of  speculations  about  what  the  Court 
may  hold  or  has  held  on  subjects  more  or  less  kindred,  but  to 
legislate,  and  thus  take  the  judgment  of  the  Court  on  that  specific 
proposal.  We  can  tell  whether  it  is  constitutional  or  unconstitu- 
tional when  the  Court  pronounces  upon  it  and  not  before.  Even 
if  the  Court  declares  it  unconstitutional,  its  decision  will  not  re- 
duce us  to  helplessness.  When  it  drives  us  from  establishing  a 
remedy  by  legislation,  it  will,  by  that  very  act,  direct  us  to  propose 
a  remedy  byj:onstitutional  amendment.  Having  framed  a  suit- 
able amendment  and  proposed  it  to  the  legislatures  of  the  states, 
our  duty  will  have  been  accomplished.  The  final  step  toward  full 
redress  will  then  be  with  the  bodies  most  directly  representative 
of  the  people  affected  by  the  wrong. "  ^ 

Although  the  important  functions  of  Congress  will  be  treated 
more  in  detail  in  the  chapters  which  follow,  it  seems  desirable  to 
give  here,  even  at  the  risk  of  some  repetition,  a  general  survey  of 
all  the  powers  vested  in  our  national  legislature.  Such  a  presenta- 
tion does  more  than  satisfy  the  theoretical  requirements  of  an 
academic  presentation  of  the  subject.  A  general  view  of  all  the 
powers  of  Congress  is  simply  indispensable  to  an  understanding 
of  current  politics,  for  questions  of  constitutionality  underhe  all 
of  our  political  controversies  over  the  powers  of  the  federal  and 
state  governments,  over  centralization  and  state  rights,  over 
national  and  local  reforms.  Such  a  survey  is  rendered  especially 
necessary  by  the  altogether  too  widespread  confusion  which 
*  Reinsch,  Readings,  p.  256. 


The  Powers  of  Congress  257 

exists  among  citizens  as  to  the  nature  of  the  federal  system. 
Every  student  of  American  government  should  have  definitely 
and  clearly  fixed  in  mind  the  various  powers  conferred  upon 
Congress  —  not  as  mere  rules  of  law,  but  as  great  principles  of 
political  practice  controlling  the  national  legislature  in  its  mani- 
fold relations  to  the  life  of  the  people  in  every  territory  and 
commonwealth  of  the  American  empire. 

I.  In  relation  to  revenue  and  expenditures.  Congress  has  the 
power  to  lay  and  collect  taxes^  duties,  imposts,  and  excises,  and  to_ 
appropriate  money,  in  order  to  pay  the  debts_ajid_proyide„f^ 
the  comrnpn_defenceajid  general  welfare,  of  the  United _States.^ 
This  power  is -not  unlimited.  JEndirect  taxes,  duties,  imposts, 
and  excises  must  be  ^mj^orrn^  throughout,  the  United  States 
— that  is,  must  be  imposed  at  the  same  rate  on  the  same 
article  wherever  found.^  Poll  taxes,  taxes  on  real  and  personal 
property,  taxes  on  incomes  from  real  and  personal  property,  and 
other  direct  taxes,^  must  be  apportioned  among  the  states  ac- 
cording to  population.  Congress  cannot  tax  exports  from  a  state, 
and  under  an  interpretation  by  the  Supreme  Court  cannot  tax 
the  ''necessary  instrumentalities"  of  a  state  government,  such 
as  the  salaries  of  state  and  local  officers,  and  state  and  municipal 
bonds.  Appropriations  for  the  army  cannot  be  made  for  a  period 
of  more  than  two  years,  but  otherwise  the  power  of  Congress  to 
spend  money  is  only  controlled  by  its  discretion.* 

II.  In  respect  to  national  defence,^  the  powers  of  Congress 
are  practically  unlimited,  except  by  the  provision  that  the  Presi- 
dent shall  be  commander-in-chief  and  that  military  appropriations  y 
shall  not  be  made  for  a  greater  period  than  two  years.  Congress 
can  raise  and  support  armies,  create  and  maintain  a  navy,  and 
provide  for  the  organization  and  use  of  the  state  militia.  Con- 
gress also  declares  war,  grants  letters  of  marque  and  reprisal® 

^  See  below,  chap,  xviii. 

^  Readings,  p.  323. 

'  Ibid.,  pp.  327,  328. 

••  The  account  given  here  is  based  largely  on  Burgess,  Political  Science  and 
Constitutional  Law,  Vol.  II,  chap.  vii. 

^  Below,  chap.  xvii. ' 

"  "Privateering"  (among  the  powers  concerned)  was  abolished  by  the 
Declaration  of  Paris  in  1856.  While  the  United  States  did  not  sign  that 
Declaration,  it  no  longer  grants  letters  of  marque  and  reprisal. 


258  American  Government  and  Politics 

authorizing  officers  or  private  parties  to  capture  property  and 
persons  subject  to  a  foreign  power;  and  m£^kes  rules  concerning 
captures  on  land  and  sea. 

We  are  accustomed  to  think  of  Germany  as  a  country  in  which 
the  military  power  of  the  government  is  enormous,  but  the 
legislature  of  that  empire  enjoys  no  such  authority  as  the  Con- 
gress of  the  United  States.  The  German  constitution  contains  a 
multitude  of  detailed  provisions  as  to  the  liability  of  the  citizen 
to  military  service,  which  the  legislature  cannot  touch;  but 
our  Congress  can  call  every  able-bodied  man  into  the  national 
service  without  regard  to  the  state  militia,  and  keep  him  there  as 
long  as  it  is  physically  possible.  There  also  ■  is  no  limit  to  the 
amount  of  money  which  can  be  appropriated  for  military  pur- 
poses, or  to  the  kind  of  military  law  which  may  be  established. 
Moreover,  the  states  are  wholly  at  the  mercy  of  the  federal  gov- 
ernment, for  they  can  keep  no  standing  army  or  ships  of  war  in 
time  of  peace  without  the  consent  of  Congress.  In  answer  to  the 
charge  that  such  an  unlimited  power  might  lead  to  despotism, 
the  defenders  of  the  Constitution,  during  its  ratification, 
urged:  "With  what  color  of  propriety  could  the  force  necessary 
for  defence  be  limited  by  those  who  cannot  limit  the  force  of 
offence  ?  If  a  federal  constitution  could  chain  the  ambition,  or 
set  bounds  to  the  exertions  of  all  other  nations,  then,  indeed,  it 
might  prudently  chain  the  discretion  of  its  own  government  and 
set  bounds  to  the  exertions  for  its  own  safety."^ 

III.  In  respect  to  commerce  and  business,^  Congress  may 
regulate  commerce  with  foreign  countries,  among  the  several 
states,  and  with  the  Indian  tribes;  make  uniform  laws  on  the 
subject  of  bankruptcy  throughout  the  United  States;  fix  the 
standards  of  weights  and  measures ;  protect  authors  and  invent- 
ors by  a  system  of  patents  and  copyrights;  and  estabHsh  post- 
offices  and  post-roads.  Commerce  not  only  includes  the  trans- 
portation of  commodities;  it  embraces  traffic  and  intercourse 
in  all  of  its  important  branches,  such  as  the  transportation 
of  passengers,  the  transmission  of  telegraph  messages,  and 
the  carrying  of  oil  through  pipe  lines.^  It  is  sometimes 
stated   that   the   power   of   regulating  interstate   and  foreign 

^  The  Federalist,  No.  XLI.  2  See  below,  chap.  xix. 

3  Readings,  p.  343. 


The  Powers  of  Congress  259 

commerce  is  vested  exclusively  in  Congress,  but  the  difficulty  of 
determining  when  a  state  law  constitutes  such  a  regulation  is  so 
great  that  the  mere  statement  does  not  carry  any  very  concise 
information.^  The  power  of  Congress  over  bankruptcy  is  not 
exclusive;  the  states  may  legislate  on  the  subject.  The  federal 
law,  however,  takes  precedence  in  case  of  a  confhct  with  the  pro- 
visions of  a  commonwealth  law,  and  Congress  by  an  act  of 
1898  has  covered  the  entire  domain  of  bankruptcy. 

With  regard  to  weights  and  measures  Congress  could,  if  it  saw 
fit,  establish  a  uniform  metric  system  throughout  the  United 
States,  but  it  has  only  gone  so  far  as  to  make  the  use  of  this  system 
lawful,  not  obligatory.^  Meanwhile  the  regulations  of  the  various 
states  prevail,  although  the  federal  government  aids  in  securing 
scientific  exactness  by  maintaining  in  the  Department  of  Com- 
merce and  Labor  a  bureau  of  standards,  the  functions  of  which 
are  the  custody  of  the  standards,  the  comparison  of  the  standards 
used  in  scientific  investigations,  engineering,  manufacturing,  com- 
merce, and  educational  institutions,  with  the  standards  adopted 
or  recognized  by  the  government;  the  testing  and  cahbration  of 
standard  measuring  apparatus;  the  solution  of  problems  arising 
in  connection  with  standards;  the  determination  of  physical 
constants,  and  the  properties  of  materials  which  are  of  particular 
importance  in  science  and  manufacture.  To  facilitate  the  spread 
of  uniform  systems  throughout  the  United  States,  the  bureau 
is  authorized  to  assist  not  only  the  federal  government,  but  also 
state  and  municipal  governments,  educational  institutions,  and 
private  concerns  engaged  in  manufacturing  or  other  pursuits 
requiring  the  use  of  standards.  The  latter  are  charged  a  fee 
for  services  rendered. 

The  protection  of  authors  and  inventors  by  a  system  of  copy- 
rights and  patents  is  intrusted  to  Congress;  but  it  is  contended 
by  some  pubHcists  that  this  power  is  concurrent  and  may  be  ex- 
ercised by  any  state  so  long  as  its  laws  do  not  contravene  the  ex- 
press provision  of  the  federal  law.  This  point,  however,  has  not 
been  authoritatively  adjudicated.' 

For  administrative  purposes  Congress  has  created  a  bureau  of 

■  Readings,  p.  348. 

'  Electric  measures  have  been  made  imiform,  however. 
'  The  power  of  Congress  over  trade-marks  extends  only  so  far  as  they 
are  mvolved  in  interstate  and  foreign  commerce. 


iSo  American  Government  and  Politics 

patents  in  the  Department  of  the  Interior,  headed  by  a  com- 
missioner, who  administers  the  patent  laws,  issues  patents  for  new 
inventions  and  improvements,  and  registers  trade-marks,  prints, 
labels,  and  the  Hke.^  The  working  staff  of  the  patent  office  is 
divided  into  a  number  of  separate  groups,  each  one  of  which  has 
charge  of  some  particular  device  or  invention.  Every  application 
is  recorded  and  referred  to  the  appropriate  group,  which  makes 
a  search  to  see  whether  the  claim  is  for  a  new  invention  and 
does  not  interfere  with  a  prior  patent.  Nearly  every  inventor 
employs  an  attorney,  although  he  is  not  required  to  do  so, 
to  assist  him  in  prosecuting  his  claim.  If  an  application  is 
rejected,  the  applicant  may  appeal  to  the  commissioner  of 
patents  and  from  his  decision  he  may  prosecute  an  appeal 
to  the  courts.  If  a  patent  is  granted,  it  runs  for  a  period  of 
seventeen  years,  and  extensions  are  sometimes  made.  Patents 
are  promptly  reissued,  however,  to  remedy  defects  in  the  original 
specifications.  The  number  of  patents  granted  in  1800  was  41. 
The  number  of  letters  patent  for  the  year  ending  June,  1908, 
was  34,902,  exclusive  of  trade-marks,  labels,  etc.;  in  that  year 
the   number   of   applications  for   patents   for   inventions  was 

58,527.' 

The  copyright  law  has  been  steadily  extended  to  new  devices, 
until  it  now  covers  not  only  books,  but  also  works  of  art, 
maps,  charts,  musical  compositions,  and  the  like.^  For  more 
than  a  century  Congress  extended  copyright  protection  only  to 
citizens  and  residents  of  the  United  States,  and  during  that  time 
American  publishers,  with  a  few  honorable  exceptions,  regularly 
"pirated"  the  works  of  foreign  authors,  that  is,  published  them  in 
the  United  States  without  paying  any  royalty  or  other  compen- 
sation. Under  the  act  of  March  3,  1891,  it  was  at  last  provided 
that  the  citizens  of  any  foreign  state  which  gives  to  citizens  of 
the  United  States  the  benefit  of  copyright  on  practically  the 

^  The  first  patent  law  was  passed  in  1790;  in  1836  the  ofiice  of  commissioner 
of  patents  was  created;  and  in  1849  the  patent  bureau  was  transferred 
to  the  Departments  of  the  Interior. 

^  Reference:  Report  of  the  Commissioner  of  Patents  (1908),  an  annual  publica- 
tion. 

'  The  term  of  a  copyright  is  twenty-eight  years  with  a  possible  renewal 
for  twenty-eight  years.  Rights  are  secured  not  only  to  authors  and  inventors, 
but  also  to  their  heirs"  and  assigns.    New  law  of  March  4,  1909. 


The  Powers  of  Congress  261 

same  basis  as  their  own  citizens,  may  be  given  the  privileges  of  our 
copyright  laws.  As  a  result,  citizens  of  the  United  States  may 
claim  the  protection  of  foreign  countries  coming  under  the  terms 
of  the  act,  and  citizens  of  foreign  countries  in  turn  may  obtain  the 
protection  of  our  laws.  The  administration  of  the  copyright  law 
is  in  the  hands  of  the  registrar  of  copyrights,  who  works  under 
the  direction  of  the  librarian  of  Congress.^  Every  applicant  re- 
ceives his  copyright,  for  no  attempt  is  made  by  the  division  of 
copyrights  to  examine  into  questions  of  infringement  as  in  the 
case  of  patents. 

While  the  power  to  estabHsh  post-ofiices  and  post-roads  is 
separately  conferred  upon  Congress,  it  may  be  regarded,  for  prac- 
tical purposes,  in  connection  with  the  power  to  regulate  commerce. 
The  estabUshment  of  post-ofl&ces  and  post-roads  is  exclusively  a 
federal  matter,  and  it  must  be  noted  that  the  power  of  the  federal 
government  covers  the  whole  domain  of  mail  transportation, 
-vyithin  each  state  as  well  as  among  the  states.^ 

IV.  The  direct  power  of  Congress,  as  a  body,  over  foreign 
relations  is  sHght,  because  the  President  and  Senate  have  the 
treaty-making  power,  and  the  President  is  our  official  spokesman 
in  the  conduct  of  all  business  with  foreign  countries.  Congressj 
however,  may,  as  we  have  seen,  regulate  foreign  commerce,  in- 
cluding the  important  branch  of  immigration;  create  consular  j 
and  diplomatic  posts  abroad  and  provide  the  emoluments  there- 
unto attached;  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas  and  offences  against  the  law  of  nations.  Con- 
gress may  also  establish  a  uniform  rule  by  which  the  subjects  of 
foreign  powers  may  become  citizens  of  the  United  States.  While 
this  power  of  prescribing  the  conditions  for  naturalization  is 
regarded  as  being  vested  exclusively  in  Congress,  it  must  be  re- 
membered that  the  states  may,  and  many  of  them  do,  confer  on 
aliens  the  right  to  vote.^ 
4  V.  The  regulation  of  the  monetary  system  is  vested  exclusively  \ 
f  in  the  federal  legislature.'*    Congress  has  power  to  coin  money,    \ 

regulate  its  value,  and  the  value  of  foreign  coin.     States  are  for-  '  j 

I 

*  Reference:  Report  of  Copyright  Legislation  by  the  Registrar  of  Copy- 
rights (1904)  — a  government  publication. 

^  See  below,  p.  394. 
^  See  Readings,  p.  144, 

*  See  below,  p.  374. 


262  American  Government  and  Politics 


bidden  to  coin  money,  emit  bills  of  credit,  or  make  anything  but 
the  gold  and  silver  coin  of  the  United  States  a  tender  in  the  pay- 
ment of  debts.  There  is  nothing  in  the  Constitution  expressly 
authorizing  Congress  to  create  paper  money,  but  it  has  exercised 
this  power  and  has  been  sustained  by  a  decision  of  the  Supreme 
Court.^ 

VI.  The  power  of  Congress  to  define  crimes  and  provide  pun- 
ishments for  them  is  narrowly  limited.  The  high  crijne  of  trea- 
son, as  indicated  above, ^  is  expressly  defined  in  the  Constitution: 
it  consists  only  in  levying  war  against  the  United  States,  adhering 
to  its  enemies,  or  giving  them  aid  and  comfort.  Congress  can- 
not therefore  make  any  offence  which  it  chooses  treason. 
Congress  may  provide  for  punishing  counterfeiters  and  persons 
cornmitting  crimes  on  the  high  seas  or  offences  against  the  laws  of^ 
nations.^  "  These  are  the  only  crimes  committed  within  the  com- 
monwealths, "  says  Professor  Burgess,"  concerning  which  Congress 
has  the  power  to  legislate;"  but  it  should  not  be  forgotten  that 
in  the  exercise  of  its  express  powers.  Congress  may  define  certain 
crimes  against  federal  laws  and  provide  penalties.  For  example, 
it  has  provided  punishment  for  theft  and  other  offences  connected 
with  the  transportation  of  mail  matter.  If  Congress  did  not  have 
this  power  of  penalizing  offenders  against  federal  law,  the 
authority  of  the  United  States  government  would  be  nullified.^ 
Hence  we  may  say  that  Congress  may  define  crimes  against  fed- 
eral laws  duly  passed  under  the  terms  of  the  Constitution,  al- 
though it  has  no  power  of  defining  crime  in  general.  This  power 
is  left  to  the  states;  it  is  for  them  to  determine  what  particular 
classes  of  actions  shall  be  deemed  crimes,  and  as  a  result  we  have 
the  greatest  divergences,  —  certain  actions  being  crimes  in  one 
state  and  innocent  in  others.  In  this  respect  the  American  fed- 
eral system  differs  fundamentally  from  the  German  system,  for 
the  German  imperial  legislature  has  the  power  to  regulate  the 
whole  domain  of  civil  and  criminal  law  and  judicial  organization 
and  procedure  throughout  the  empire. 

*  See  Readings,  p.  241, 
^  Above,  p.  149. 

'  Congress  may  of  course  define  crimes    in  the  territories  and  districts 
directly  imder  the  government  of  the  United  States. 

*  Readings,  p.  244.    The  distinction  should  be  noted,  however,  between  a 
code  of  criminal  law  and  ordinary  laws  with  penal  sanctions  attached. 


The  Powers  of  Congress  263 

VII.  The  government  of  the  territories  and  districts  belong- 
ing to  the  United  States  is  vested  in  the  federal  authorities. 
Congress  has  the  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States,  to  exercise  exclusive  legislation  in  all 
cases  whatsoever  over  the  District  of  Columbia,  and  over  all 
places  purchased  by  the  federal  government  (with  the  consent  of 
the  state  legislatures  concerned)  for  the  erection  of  forts,  maga- 
zines, arsenals,  dockyards,  and  other  needful  buildings.  In  the 
exercise  of  this  authority  over  territories  and  districts,  Congress 
combines  the  power  of  the  federal  government  with  that  of  a 
state  government,  subject  to  the  fundamental  limitations  in  the 
Constitution  which  forbid  it  to  do  some  things  that  states  are  not 
forbidden  to  do  —  for  example,  establish  a  press  censorship  or 
official  religion.^  The  right  to  admit  new  states  and  supervise  the 
organization  of  territories  into  states  is  also  vested  in  Congress; 
and  the  process  to  be  followed  in  the  admission  or  organization 
of  a  new  state  is  left  to  the  determination  of  that  body.^ 

VIII.  Notwithstanding  the  theory  of  the  separation  of 
powers.  Congress  may  to  some  extent  control  the  various  execu- 
tive departments  by  statutes  regulating  even  the  minutest  duties 
of  the  Cabinet  officers.  As  we  have  seen,  the  Constitution  merely 
hints  at  the  existence  of  the  executive  departments;  but  the 
power  to  determine  the  number  of  such  departments  and  to  pro- 
vide for  the  internal  organization  of  each  is,  nevertheless,  exer- 
cised by  Congress.  How  far  it  may  use  this  authority  to  control 
the  President's  high  personal  advisers  is  a  matter  of  dispute  that 
cannot  be  settled  by  any  abstract  definitions;  ^  but  it  may 
exercise  a  substantial  dominion  over  executive  departments  under 
its  power  to  fix  salaries  and  define  duties. 

IX.  Congress  may  also  exercise  in  practice  a  large  power  over 
the  federal  judiciary,  notwithstanding  the  theoretical  indepen- 
dence of  that  branch  of  the  government;  because  it  may  determine 
the  number  of  Supreme  Court  judges,  fix  their  salaries,  subject  to 
certain  limits,  and  define  their  appellate  jurisdiction.  The  cre- 
ation of  inferior  federal  courts  is  subject  to  its  power;  and  it  may 
define  the  jurisdiction  and  procedure  of  these  courts  and  provide 
the  methods  by  which  cases  may  be  drawn  from  the  state  courts 

*  See  below,  p.  418.  ^  Below,  chap,  xxii,  ^  See  above,  p.  215. 


264  American  Government  and  Politics 

into  the  federal  courts.  A  notable  example  of  the  exercise  of  the 
power  of  Congress  over  our  federal  judicial  system  is  afforded 
by  the  Judiciary  Act  of  1789,  providing,  among  other  things,  the 
way  in  which  state  statutes  could  be  brought  into  the  federal 
courts,  and  their  vahdity  tested.^ 

Another  important  power  vested  in  Congress  is  that  of  provid- 
ing the  precise  manner  in  which  the  acts,  records,  and  judicial 
proceedings  of  each  state  shall  be  given  full  faith  and  credit  in 
every  other  state.^ 

X.  In  addition  to  controUing,  to  a  limited  extent,  the  federal 
judicial  system,  Congress  itself  enjoys  the  power  of  removing 
the  civil  officers  of  the  United  States  by  the  process  of  impeach- 
ment,^ but  in  practice  this  power  is  of  sUght  importance.  In  try- 
ing cases  of  impeachment,  the  Senate  acts  as  the  high  court.* 
When  the  President  of  the  United  States  is  being  tried,  the  Chief 
Justice  of  the  Supreme  Court  presides.  It  requires  a  two-thirds 
vote  of  the  members  present  to  convict. 

The  power  of  preferring  and  prosecuting  charges  against  of- 
fenders is  vested  in  the  House  of  Representatives.  In  practice, 
whenever  the  House  decides  to  bring  any  federal  officer  before  the 
bar  of  the  Senate,  it  adopts,  by  resolution,  articles  of  impeach- 
ment charging  the  particular  offender  with  certain  high  crimes 
and  misdemeanors  and  enumerating  with  more  or  less  detail  his 
particular  offences.  It  thereupon  chooses  leaders  to  direct  the 
prosecution  before  the  Senate,  and  the  case  is  then  conducted 
very  much  in  the  form  of  a  trial  in  an  ordinary  court.  The  prose- 
cution states  its  case;  witnesses  for  and  against  the  accused  are 
heard;  and  attorneys  on  both  sides  make  their  arguments. 
When  the  case  is  fully  presented  the  Senators  vote,  and  if  two- 
thirds  of  the  members  present  concur  in  holding  the  accused 
guilty,  he  stands  convicted;  but  in  case  of  failure  to  secure  the 
requisite  two-thirds,  he  is  acquitted. 

The  penalty  which  the  Senate  can  impose  upon  any  person 

*  On  the  power  of  Congress  over  the  judiciary,  see  below,  p.  294. 
^  See  above,  p.  158. 

^  On  this  subject  see  the  careful  survey,  "  The  Law  of  Impeachment  in 
the  United  States,"  by  Professor  D.  Y.  Thomas,  Political  Science  Review 
for  May,  1908,  pp.  378  ff. 

*  Technically,  however,  it  only  sits  as  the  Senate.  In  1868  it  ceased  to  call 
itself  "  a  high  court  of  impeachment." 


The  Powers  of  Congress  265 

convicted  in  case  of  impeachment  is  strictly  limited  to  the  re- 
moval of  the  offender  from  office  and  the  imposition  of  a  disquali- 
fication to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit 
imder  the  United  States.  Any  person  convicted,  however,  is 
still  liable,  after  his  removal  from  office,  to  indictment,  trial, 
judgment,  and  punishment  for  his  offence  according  to  law.  It 
is  not  obhgatory  upon  the  Senate  to  disqualify  the  convicted 
person  from  entering  the  federal  service  in  the  future,  but  in  any 
case  he  must  be  immediately  removed  from  office. 

The  jurisdiction  of  the  Senate  as  a  court  of  impeachment  ex- 
tends only  over  the  President,  Vice-President,  and  the  civil  offi- 
cers of  the  United  States,  and  over  the  offences  of  treason,  bribery, 
or  other  high  crimes  and  misdemeanors.  Treason  is,  of  course,  de- 
fined in  the  Constitution;  and  the  meaning  of  the  term  "  bribery" 
is  clear  to  all.  The  phrase  "other  high  crimes  and  misdemean- 
ors," however,  is  somewhat  vague,  and  Congress  might  give  a 
loose  interpretation  to  it,  even  going  so  far  as  to  treat  the  neglect 
of  official  duty  as  a  ground  for  impeachment.  Nevertheless,  a 
conservative  interpretation  has  generally  been  placed  upon  this 
phrase,  so  as  to  hmit  the  offences,  which  render  an  officer  liable 
to  impeachment,  to  crimes  and  misdemeanors  as  understood  in 
the  ordinary  law  of  the  land.^ 

*  The  Senate  has  sat  as  a  Court  of  Impeachment  in  the  cases  of  the  fol- 
lowing accused  oflScials,  with  the  result  stated  and  for  the  periods  named: 

William  Blount,  a  Senator  of  the  United  States  from  Tennessee; 
charges  dismissed  for  want  of  jurisdiction,  he  having  previously  resigned; 
Monday,  December  17,  1798,  to  Monday,  January  14,  1799. 

John  Pickering,  judge  of  the  United  States  district  court  for  the 
district  of  New  Hampshire;  removed  from  office;  Thursday,  March  3,  1803, 
to  Monday,  March  12,  1804. 

Samuel  Chase,  Associate  Justice  of  the  Supreme  Court  of  the  United 
States;  acquitted;  Friday,  November  30,  1804,  to  March  i,  1805. 

James  H.  Peck,  judge  of  the  United  States  district  court  for  the  dis- 
trict of  Missouri;  acquitted;  Monday,  April  26,  1830,  to  Monday,  January 
3i»  1831. 

West  H.  Humphreys,  judge  of  the  United  States  district  court  for 
the  middle,  eastern,  and  western  districts  of  Tennessee;  removed  from  office; 
Wednesday,  May  7,  1862,  to  Thursday,  June  26,  1862. 

Andrew  Johnson,  President  of  the  United  States;  acquitted; 
Tuesday,  February  25,  1868,  to  Tuesday,  May  26,  1868. 

William  W.  Belknap,  Secretary  of  War;  acquitted;  Friday,  March 
3,  1876,  to  Tuesday,  August  i,  1876. 

Charles  Swayne,  judge  of  the  United  States  district  court   for  the 


266  American  Government  and  Politics 

Federal  military  officers  are  exempt  from  this  jurisdiction, 
being  subject  to  courts-martial.  Members  of  Congress  are  also 
exempt,  for  they  are  not  technically  "civil  officers,"  and  further- 
more they  are  under  the  control  of  their  respective  houses  —  each 
house  having  the  power  to  determine  its  rules  and  proceedings, 
punish  its  members  for  disorderly  behavior,  and,  with  the  con- 
currence of  two-thirds,  expel  a  member. 

XI.  In  carrying  into  execution  the  powers  vested  by  the  Con- 
stitution in  the  government  of  the  United  States  or  in  any  depart- 
ment or  office  thereof.  Congress  may  make  all  laws  which  shall 
be  deemed  "necessary  and  proper."  The  courts  have,  in  gen- 
eral, given  a  Uberal  interpretation  to  this  phrase.  The  Supreme 
Court  has  repeatedly  declared  that  Congress  possesses  the  right  to 
use  any  means  which  it  deems  conducive  to  the  exercise  of  any  ex- 
press power.  Said  the  Court  in  the  case  of  Juilliard  v.  Greenman :  * 
"The  words  'necessary  and  proper'  are  not  limited  to  such  meas- 
ures as  are  absolutely  and  indispensably  necessary,  without  which 
the  powers  granted  must  fail  of  execution;  but  they  include  all 
the  proper  means  which  are  conducive  or  adapted  to  the  end  to  be 
accomplished  and  which,  in  the  judgment  of  Congress,  will  most 
advantageously  effect  it." 

northern  district  of  Florida;    acquitted;    Wednesday,  December  14,  1904, 
to  Monday,  February  27,  1905.     Congressional  Directory  (1909),  p.  169. 
^  no  U.  S.  R.,  421;  Readings,  p.  245. 


CHAPTER  XIV 


CONGRESS  AT  WORK 


To  the  average  observer,  Congress  is  a  vast  and  complicated 
legislative  organ,  with  rules,  committees,  and  methods,  beyond 
the  ken  of  ordinary  mortals;  but  a  somewhat  careful  examina- 
tion of  the  procedure  of  that  body  from  day  to  day  reveals  cer- 
tain principles  and  practices  which,  when  properly  grasped,  make 
the  working  scheme  of  the  organization  fairly  clear  —  at  least 
clear  enough  for  the  citizen  who  does  not  intend  to  become  a 
legislator  but  merely  wishes  to  watch  the  operations  of  the  na- 
tional lawmakers  with  a  reasonable  degree  of  understanding. 

Party  Organization  and  Leadership  in  Congress 

I.  The  first  fact  to  be  grasped  is  that  the jvQrlyjlg  methods  of 
Congress  are  Jargely  determined  by  the  existence  of  two  political 
parties  —  one,  a  majority  in  control  of  .one  or  both  houses  and 
regarding  itself  as  responsible  for  the  principal  legislative  poli- 
cies; the  other,  aminority,  in  opposition,  bound  under  ordinary 
circumstances  to  criticise  and  often  vote  against  the  measures  in- 
troduced and  advanced  by  the  majority.  In  England,  the  polit- 
ical party  organization  is  carried  frankly  into  the  House  of  Com- 
mons, where  the  majority  and  minority  sit  facing  each  other,  and 
where  the  government  is  avowedly  that  of  the  predominant 
party  —  a  government  of  men,  not  even  theoretically  of  con- 
stitutional law.  In  the  United  States,  the  party  rules  none  the 
less,  but  its  organization  and  operations  are,  as  we  have  seen,^  un- 
known to  the  formal  law  of  the  federal  Constitution.  It  is  true 
that  the  votes  on  measures  in  Congress  are  by  no  means  always 
cast  according  to  party  divisions,  but  it  is  likewise  true  that  the 
principal  legislative  work  of  a  session  is  the  work  of  the  majority 
party,  formulated  by  its  leaders,  and  carried  through  under  their 
direction.^ 

This  is  not  all.    Each  party  in  the  Senate  and  the  House  is 

*  Above,  chap.  vi. 

^  For  the  part  of  the  President  as  poUtical  leader,  see  above,  chap.  be. 

267 


268  American  Government  and  Politics 

organized  into  a  congressional  caucus/  in  which  is  frequently 
determined  the  line  of  party  action  with  regard  to  important  leg- 
islative questions.  It  is  in  a  party  caucus  before  the  opening  of 
each  Congress,  that  the  majority  in  the  House  chooses  the  Speaker 
and  the  minority  decides  upon  its  leader  whom  it  formally  pre- 
sents as  a  candidate  for  Speaker,  knowing  full  well  that  he  cannot 
by  any  chance  be  elected.  It  is  in  the  caucus  that  the  majority 
decides  whether  it  will  adopt  the  rules  of  the  preceding  Congress 
or  modify  them;  and  it  is  seldom  that  the  decision  of  the  caucus 
is  overthrown.  The  caucus  is  definitely  organized  under  rules  by 
which  party  members  are  expected  to  abide,  although  there  are 
often  a  few  "insurgents"  who  insist  on  acting  independently 
on  some  matters. 

The  exact  weight  of  the  caucus  in  determining  party  policy  is 
difficult  to  ascertain.  At  times  in  our  history,  undoubtedly,  the 
caucus  has  settled  fundamental  matters  of  public  interest  before 
they  were  introduced  into  Congress,  but  there  is  reason  for  believ- 
ing that  its  influence  has  been  declining  within  recent  years  on 
account  of  the  rise  to  power  in  each  house  of  a  few  men  whose 
long  service,  shrewdness  in  legislative  management,  and  effec- 
tive leadership  have  placed  them  in  control  of  the  speakership 
and  the  great  committees. 

How  this  is  working  out  in  the  Senate  is  indicated  by  this  pas- 
sage from  a  speech  made  in  that  body  in  1908,  by  Senator  La 
FoUette.  "I  attended  a  caucus  at  the  beginning  of  this  Congress. 
I  happened  to  look  at  my  watch  when  we  went  into  that  caucus. 
We  were  in  session  three  minutes  and  a  half.  Do  you  know 
what  happened?  Well,  I  will  tell  you.  A  motion  was  made  that 
somebody  preside.  Then  a  motion  was  made  that  whoever  pre- 
sided should  appoint  a  committee  on  committees;  and  a  motion 
was  then  made  that  we  adjourn.  Nobody  said  anything  but  the 
Senator  who  made  the  motion.  Then  and  there  the  fate  of  all 
the  legislation  of  this  session  was  decided.  .  .  .  Mr.  President, 
if  you  will  scan  the  committees  of  this  Senate,  you  will  find  that  a 
little  handful  of  men  are  in  domination  and  control  of  the  great 
legislative  committees  of  this  body,  and  that  they  are  a  very 
limited  number."  ^ 

^  Readings y  p.  247.     The  caucus  is  held  behind  closed  doors,  but  its  de- 
liberations are  seldom  withheld  from  the  public. 
^  Reinsch,  Readings,  pp.  168-169. 


Congress  at  Work  269 

In  the  House,  the  directing  power  seems  to  be  unquestionably 
concentrating  in  the  Speaker,  the  majority  members  of  the  com- 
mittee on  rules,  and  the  chairmen  of  the  important  committees.* 
The  positive  leadership  of  these  men  seems  to  be  definitely  recog- 
nized. They,  and  such  party  members  as  are  of  unquestioned 
weight  in  the  House,  are  gradually  working  toward  something 
like  a  cabinet  system  of  government,  in  which  they  formulate 
the  policies  and  bring  the  other  party  members  into  line  by  the 
many  methods  known  to  politics.^ 

Indeed,  a  recent  writer  goes  so  far  as  to  say  that  the  party 
caucus  is  now  merely  held  for  the  information  of  the  leaders  of 
the  House  and  is  "intended  rather  to  furnish  a  vent  for  excited 
feeling  and  to  measure  and  sum  up  the  relative  strength  of  differ- 
ent opinions,  than  to  frame  a  policy  upon  which  the  party  will 
unite."  ^ 

The  Mass  of  Business  before  Congress 

II.  The  second  important  fact  to  grasp  is  that  each  session  of 
Congress  is  confronted  by  an  enormous  amount  of  business  — 
from  five  to  tw^enty^  times  as  much  as  can  be  considered  ade- 
quately.' Any  member  may  introduce  as  many  bills  as  he  pleases 
by  handing  them  to  the  clerk  if  they  are  of  a  private  nature,  or 
to  the  Speaker  if  they  are  of  a  public  character.  He  does  not 
have  to  secure  any  permission  in  advance  or  assume  any  re- 
sponsibility for  them,  even  though  they  may  involve  heavy  charges 
upon  the  public  treasury. 

This  looks  like  a  fair,  just,  and  simple  matter,  but  in  fact  it  is 
largely  responsible  for  the  extravagance  and  confusion  that  exist 
in  the  federal  government  and  for  the  iron-bound  methods  that 
are  followed  in  the  procedure  of  the  House.  Inasmuch  as  each 
member  has  a  large  number  of  special  appropriations  for  his  own 
particular  district,  he  is  always  willing  to  be  generous  with  the 
claims  of  other  members  in  return  for  a  favorable  consideration 
of  his  own.  This  practice  of  cooperating  in  securing  appropria- 
tions is  known  as  "log-rolling" — a  term  derived  from  pioneer 

*  It  is  difficult  to  say  what  will  be  the  eflFect  of  the  action  of  the  House  in 
making  the  committee  on  rules  elective.     Below,  p.  283. 

^  For  the  elements  of  control  in  the  EngUsh  Cabinet,  see  Lowell,  Govern- 
ment of  England,  Vol.  I,  pp.  448  ff.     See  Reinsch,  Readings,  p.  292. 

^  H.  L.  Nelson,  in  the  Century  Magazine,  Vol.  LXIV,  p.  169. 


270  American  Government  and  Politics 

times  when  frontiersmen  helped  one  another  in  rolling  logs,  mak- 
ing clearings,  and  building  cabins.  It  is  owing  to  this  system 
that  national  interests  are  largely  subordinated  to  particular  and 
local  interests. 

The  way  in  which  this  pressure  for  appropriations  operates  can 
best  be  illustrated  by  the  following  Ust  of  bills  relative  to  a  single 
locality,  introduced  on  December  6,  1909:  — 

By  Mr.  Clark  of  Florida:  A  bill  (H.  R.  12293)  to  establish  a 
fish  hatchery  and  biological  station  in  the  Second  Congressional 
District  of  Florida  —  to  the  Committee  on  the  Merchant  Marine  and 
Fisheries. 

Also,  a  bill  (H.  R.  12294)  to  establish  a  fish-hatching  and  fish- 
cultural  station  on  the  St.  John's  River,  in  the  State  of  Florida  — 
to  the  Committee  on  the  Merchant  Marine  and  Fisheries. 

Also,  a  bill  (H.  R.  12295)  to  provide  for  the  erection  of  a  sub- 
treasury  building  and  the  establishment  of  a  sub  treasury  at  Jackson- 
ville, in  the  State  of  Florida  —  to  the  Committee  on  Public  Buildings 
and  Grounds. 

Also,  a  bill  (H.  R.  12296)  to  provide  for  the  erection  of  a  public 
building  at  the  city  of  Palatka,  in  the  State  of  Florida  —  to  the  Com- 
mittee on  Public  Buildings  and  Grounds. 

Also,  a  bill  (H.  R.  12297)  to  require  the  Secretary  of  Agriculture 
to  make  monthly  reports  as  to  the  sea-island  cotton,  pineapple,  and 
orange  crops  —  to  the  Committee  on  Agriculture. 

Also,  a  bill  (H.  R.  12298)  to  extend  the  provisions  of  the  existing 
bounty-land  laws  to  the  officers  and  enlisted  men  and  the  officers 
and  men  of  the  boat  companies  of  the  Florida  Seminole  Indian  wars 
—  to  the  Committee  on  the  Public  Lands. 

Also,  a  bill  (H.  R.  12299)  to  extend  to  the  veterans  of  the  several 
Seminole  Indian  wars  and  to  the  widows  of  the  veterans  of  the  several 
Seminole  Indian  wars  the  benefits  of  the  act  of  Congress  of  February 
6,  1907  —  to  the  Committee  on  Pensions. 

Also,  a  bill  (H.  R.  12300)  granting  pensions  to  the  soldiers  of  the 
different  Seminole  Indian  wars  and  their  widows  —  to  the  Committee 
on  Pensions. 

Also,  a  bill  (H.  R.  12301)  to  provide  for  and  levy  an  import  duty 
on  Egyptian  and  other  long-staple  cotton  imported  into  the  United 
States  from  foreign  countries  —  to.  the  Committee  on  Ways  and  Means. 

Also,  a  bill  (H.  R.  12303)  for  the  relief  of  the  State  of  Florida  — 
to  the  Committee  on  War  Claims.* 

This  is  no  exceptional  list,  and  is  not  printed  here  for  the  pur- 

*  Congressional  Record  for  December  6,  1909. 


Congress  at  Work  271 

pose  of  criticising  Mr.  Clark,  but  only  to  indicate  the  nature  of 
the  system  which  has  well-nigh  degraded  the  House  of  Repre- 
sentatives into  a  group  of  astute  wire-pullers  whose  tenure  of 
position  and  standing  with  their  constituents  depend,  not  upon 
their  high  abilities  for  dealing  with  really  great  issues,  but  upon 
the  success  with  which  they  may  secure  appropriations  for  selfish 
local  interests  —  to  use  the  congressional  phrase,  "get  pork  out 
of  the  public  pork-barrel." 

It  is  idle,  however,  to  criticise  members  of  Congress,  for  they 
are  not  individually  at  fault.  Any  one  of  them  who  refused  to 
join  in  this  general  scramble  for  the  division  of  spoils  would  find 
himself  speedily  retired  by  the  organized  element  among  his 
constituents,  and  perhaps  by  the  vote  of  his  constituents,  for 
they  are  generally  prone  to  measure  the  achievements  of  their 
Representative  by  the  amount  of  "pork"  which  he  secures  for 
the  district.  There  is  no  use,  let  it  be  repeated,  in  criticising 
members  of  Congress.  The  system,  as  Professor  Henry  Jones 
Ford  points  out,  is  at  fault.^  As  long  as  any  member  of  Congress 
may  introduce  measures  carrying  a  charge  upon  the  public 
treasury  and  as  many  other  bills  and  resolutions  as  he  pleases, 
just  so  long  will  the  log-rolling  process  continue,  and  the  House 
of  Representatives  be  so  overwhelmed  with  business  as  prac- 
tically to  destroy  its  functions  as  a  dehberative  assembly.^ 

The  following  measures  were  introduced  into  the  House  during 
the  Fifty-ninth  Congress:  26,154  bills,  257  joint  resolutions,  62 
concurrent  resolutions,  898  simple  resolutions,  and  8174  reports. 
During  this  Congress,  692  pubUc  bills  and  6940  private  bills, 
principally  pension  measures,  were  passed.  The  power  to  select 
from  this  enormous  mass  before  the  House  must  be  vested  in  the 
hands  of  some  person  or  group  of  persons,  for  the  selection  cannot 
be  made  openly  on  the  floor  by  any  automatic  process  which 
brings  every  measure  to  the  consideration  of  that  body.  These 
persons  invested  with  the  power  of  selection  in  the  House  must 
of  necessity  be  leaders  among  the  majority  party,  for  that  party 
assumes  responsibility  before  the  country  for  the  results  of  a  leg- 
islative session.     In  the  House  these  leaders  are  the  Speaker, 


*  Budget  Control  in  the  United  States  (in  press) ;  the  Blumenthal  lectures  at 
Columbia  University  for  1909. 

^  Readings f  p.  269;  below,  pp.  365  ff. 


272  American  Government  and  Politics 

I  the  committee  on  rules,  and  the  chairmen  of  the  principal  com- 
mittees to  which  bills  are  referred;  and  the  rules  provide  ways  by 
\  which  they  can  make  selections  of  business  for  consideration  and 
\  limit  the  amount  of  time  which  may  be  consumed  in  debate  on 
each  measure. 

The  Rules  of  the  House  of  Representatives 

III.  The  rules,  therefore,  must  enable  the  presiding  officer  of 
the  House  to  prevent  the  consideration  of  any  motion  introduced 
merely  for  the  purpose  of  delaying  business.  They  must  limit, 
or  make  provision  for  limiting,  the  amount  of  time  which  may  be 
consumed  in  debating  any  particular  matter.  They  must  pro- 
vide some  way  in  which  the  party  leaders  can  force  the  considera- 
tion of  certain  measures  whenever  they  see  fit.  These  principles 
have  slowly  been  evolved  in  the  development  of  the  House  of 
Representatives,  and  are  now  written  in  the  rules  of  that  body. 

I.  In  the  first  place,  the  Speaker  of  the  House  may  refuse  to  put 
motions  which  he  regards  as  dilatory;  tliat  is,  designed  merely 
to  delay  business. 

The  immediate  cause  for  the  adoption  of  this  principle  was  the 
practice  of  filibust-ering  *  by  the  minority  or  by  small  groups.  In  the 
Fiftieth  Congress,  on  one  occasion,  the  "  House  remained  in  contin- 
uous session  eight  days  and  nights,  during  which  time  there  were 
over  one  hundred  roll-calls  on  the  iterated  and  reiterated  motions 
to  adjourn  and  to  take  a  recess,  and  their  amendments.  On  this 
occasion  the  reading  clerks  became  so  exhausted  that  they  could 
no  longer  act,  and  certain  members,  possessed  of  large  voices  and 
strenuous  lungs,  took  their  places.  If  this  was  not  child's  play, 
it  would  be  difficult  to  define  it.  Then,  again,  when  a  measure  to 
which  the  minority  objected  was  likely  to  pass,  the  yeas  and  nays 
would  be  ordered."  ^ 

In  the  succeeding  Congress,  of  which  Mr,  Thomas  B.  Reed  was 

^  In  ordinary  use,  the  word  "  filibuster  "  means  to  act  as  a  freebooter  or 
buccaneer,  but  in  parliamentary  practice  it  means  "  to  obstruct  legislation 
by  undue  use  of  the  technicalities  of  parliamentary  law  or  privileges,  as  when 
a  minority,  in  order  to  prevent  the  passage  of  some  measure  obnoxious  to 
them,  endeavor  to  tire  out  their  opponents  by  useless  motions,  speeches, 
and  objections."  Frequently,  the  purpose  of  a  filibuster  is  to  call  the  atten- 
tion of  the  country  in  an  emphatic  way  to  the  policy  of  the  majority. 

^  Reinsch,  Readings,  p.  238. 


Congress  at  Work  273 

Speaker,  the  Republicans  had  only  a  narrow  majority,  and  it  soon 
became  clear  that  the  opposing  party,  by  putting  dilatory  motions 
and  refusing  to  answer  to  the  roll-call  on  a  quorum,  could  prevent 
the  majority  from  doing  any  business  at  all.  It  was  under  these 
circumstances  that  Speaker  Reed,  in  January,  1890,  refused  to  put 
motions  which  he  regarded  as  purely  dilatory,  and  was  sustained 
by  the  House. 

Mr.  Reed  defended  his  ruling  as  follows:  — 

The  object  of  a  parliamentary  body  is  action,  and  not  stoppage 
of  action.  Hence  if  any  member  or  set  of  members  undertakes  to 
oppose  the  orderly  progress  of  business  even  by  the  use  of  the  ordinarily 
recognized  parliamentary  motions,  it  is  the  right  of  the  majority  to 
refuse  to  have  those  motions  entertained  and  to  cause  the  public 
business  to  proceed.  Primarily,  the  organ  of  the  House  is  the  man 
elected  to  the  speakership;  it  is  his  duty  in  a  clear  case,  recognizing 
the  situation,  to  endeavor  to  carry  out  the  wishes  and  desires  of  the 
majority  of  the  body  which  it  represents.  Whenever  it  becomes 
apparent  that  the  ordinary  and  proper  parliamentary  motions  are 
being  used  solely  for  the  purposes  of  delay  and  obstruction;  .  .  . 
when  a  gentleman  steps  down  to  the  front  amid  the  applause  of  his 
associates  on  the  floor  and  announces  that  it  is  his  intention  to  make 
opposition  in  every  direction,  it  then  becomes  apparent  to  the  House 
and  the  community  what  the  purpose  is.  It  is  then  the  duty  of  the 
occupant  of  the  Speaker's  chair  to  take,  under  parliamentary  law, 
the  proper  course  with  regard  to  such  matters. 

This  principle  was  shortly  afterward  (1890)  embodied  in  the 
rules,  and  the  Speaker  now  has  regular  sanction  for  refusing  to  en| 
tertain  purely  dilatory  motions.  However,  the  constitutional 
right  of  a  member  to  demand  the  yeas  and  nays  cannot  be  denied 
even  if  the  purpose  is  dilatory.^ 

2.  In  the  second  place  the  Speaker  may  count  as  present 
those  members  who  are  physically  present  but  refuse  to  answer  to 
their  names  on  a  roll-call  for  the  purpose  of  compelUng  an  ad- 
journment in  the  absence  of  a  quorum.  This  principle  was  es- 
tabUshed  by  Speaker  Reed  about  the  same  time  as  the  ruHng  on 
dilatory  motions,  and  also  embodied  in  the  revision  of  the  rules  of 
that  year.^ 

'  On  this  important  subject,  see  Hinds,  Precedents  of  the  House  of  Repre- 
sentatives, Vol.  V,  pp.  353  ff. 
2  See  above,  p.  247. 

T 


274  American  Government  and  Politics 

i  3.  In  the  third  place,  the  rules  provide  a  method  for  auto- 
matically shortening  debate  by  prescribing  that  the  time  occupied 
i  by  any  member  in  discussing  a  legislative  proposition  shall  not  ex- 
\  ceed  one  hour.  This  limit  was  imposed  in  1841,  and  at  the  time 
Senator  Benton  declared  that  it  was  "the  largest  limitation  upon 
the  freedom  of  debate  which  any  deUberative  assembly  ever  im- 
posed upon  itself,  and  presents  an  eminent  instance  of  permanent 
injury  done  to  free  institutions  in  order  to  get  rid  of  a  temporary 
annoyance."  It  is  difficult  to  see,  however,  in  what  way  the  House 
could  meet  the  enormous  pressure  upon  it,  if  any  member  from 
among  the  391  could  talk  as  long  as  he  pleased  on  any  measure. 
A  member  may,  if  he  chooses,  yield  a  portion  of  his  time  to  some 
other  member  or  members  wishing  to  speak  on  a  measure,  but  he 
may  occupy  no  more  than  one  hour,  except  by  obtaining  unani- 
mous consent.  Neither  may  he  speak  twice  upon  the  same 
measure  unless  he  introduced  it,  or  is  the  member  reporting  it 
from  committee.  When  going  into  the  committee  of  the  whole,* 
the  House  fixes  the  time  of  debate,  which  cannot  be  extended  by 
the  committee;  and  in  many  other  ways  freedom  of  debate  is 
arbitrarily  limited. 

4.  In  the  fourth  place,  in  order  to  enable  party  leaders  to  force 
the  consideration  of  certain  measures  whenever  they  see  fit,  the 
following  committees  may  report  on  the  subjects  enumerated 
practically  at  any  time  in  the  course  of  the  procedure  of  the 
House,  no  matter  what  may  be  under  discussion :  the  committee 
on  rules  may  report  on  rules,  joint  rules,  and  order  of  business;^ 
the  committee  on  elections,  on  the  right  of  a  member  to 
his  seat;  the  committee  on  ways  and  means,  on  bills  raising  rev- 
enue; the  committees  having  jurisdiction  of  appropriations,  on  the 
general  appropriations  bills;  the  committee  on  rivers  and  har- 
bors, bills  for  the  improvement  of  rivers  and  harbors;  the  com- 
mittee on  the  public  lands,  bills  for  the  forfeiture  of  land  grants  to 
railroad  and  other  corporations,  bills  preventing  speculation  in 

*  The  committee  of  the  whole  forms  a  convenient  body  for  discussion 
and  provisional  voting  on  measures.  In  it,  100  constitute  a  quorum  and  the 
Speaker's  chair  is  taken  by  some  other  member.  Measures  approved  in  it  are 
reportied  to  the  House  for  formal  adoption. 

^  It  is  always  in  order  to  call  up  for  consideration  a  report  of  the  committee 
on  rules.  The  position  of  this  important  committee  is  considered  below 
(p.  283)  in  connection  with  the  Speaker. 


Congress  at  Work  275 

public  lands,  and  bills  for  the  reservation  of  the  public  lands  for 
the  benefit  of  actual  and  bona-fide  settlers;  the  committee  on 
territories,  bills  for  the  admission  of  new  states;  the  committee  on 
enrolled  bills,  enrolled  bills;  the  committee  on  invalid  pensions, 
general  pension  bills. 

The  Senate  also  has  its  code  of  rules,  but  it  has  not  adopted 
any  of  the  drastic  methods  obtaining  in  the  House.^  When  the 
Senate  rules  were  revised  in  1806,  the  right  to  move  the  previous 
question,  and  thus  close  debate  summarily,  was  omitted,  and  all 
attempts  to  restore  it  have  failed.  Ordinarily  the  method  of 
obstruction  in  the  Senate  is  prolonged  speaking,  and  any  member 
endowed  with  sufficient  physical  endurance  may  prevent  a  meas- 
ure from  coming  to  a  vote,  and  thus  compel  the  majority  to  capit- 
ulate. In  1908,  however,  the  Senate,  to  defeat  the  tactics  of 
Senator  La  FoUette,  who  wished  to  prolong  the  debate  on  a  cer- 
tain measure,  applied  the  following  principles:  (i)  The  presiding 
officer  may  refuse  to  comply  with  a  demand  for  a  roll-call  on  a 
quorum,  if,  on  a  count,  he  finds  a  quorum  present;  (2)  the  ques- 
tion of  "no  quorum"  cannot  be  again  raised  after  the  roll  has 
been  called  and  a  quorum  found  present,  unless  some  legislative 
business  other  than  mere  debate  has  intervened;  (3)  the  dor- 
mant rule  that  a  Senator  may  not  speak  on  the  same  subject 
more  than  once  on  the  same  day  may  be  revived  at  any  time.^ 

The  practice  of  unlimited  debate  in  the  Senate  often  has  an 
important  influence  on  the  course  of  legislative  business.^  A^ 
Senator  may  have  some  particular  appropriation  in  favor  of  his 
state  which  he  wishes  to  insert  in  the  general  appropriation  bill; 
and  toward  the  closing  hours  of  the  session  he  may  threaten  to 
block  everything  by  exercising  his  right  to  speak  indefinitely 
until  the  Senate  yields.  This  must  of  course  bring  the  House 
to  terms  also ;  and  on  more  than  one  occasion  the  House  has  been 
forced  either  to  acquiesce  in  an  appropriation  which  it  did  not 
favor,  or  incur  the  risk  of  having  some  of  its  important  measures 
held  up  by  recalcitrant  Senators.* 

*  See  Wilson,  Constitutional  Government  in  the  United  States,  chap.  v. 

*  Reinsch,  Readings,  p.  156,  for  this  important  matter. 

^  The  caucus  of  the  majority  of  the  Senate  has  a  "steering  committee" 
which  performs  analogous  functions  to  those  performed  by  the  committee 
on  rules  in  the  House.     See  below,  p.  283. 

*  Reinsch,  Readings,  p.  135. 


276 


American  Government  and  Politics 


The  direction  of  business  in  the  Senate  is  in  the  hands  of  the 
chairman  of  the  majority  caucus  and  his  immediate  friends.  The 
general  direction  and  coordination  of  legislative  business  in  both 
houses  is  vested  in  an  unofficial  "steering  committee"  composed 
of  several  leading  Senators  and  the  six  majority  members  of  the 
House  committee  on  rules. 

The  Committees  of  Congress} 

IV.  As  a  part  of  the  general  process  by  which  the  houses 
endeavor  to  meet  the  business  coming  before  them,  there  has  been 
evolved  an  extensive  committee  system.  The  student  of  ^pur 
national  government  should,  therefore,  bear  in  mind  that  the 
legislative  work  of  each  house  is  largely  done  by  committees,  and 

^  In  December,  1909,  there  were  seventy-two  standing  committees  in  the 
Senate  and  sixty-one  in  the  House.  The  following  table  gives  the  most 
important  committees,  the  name  of  the  chairman  of  each,  and  the  length  of 
his  service  in  Congress:  — 

Senate 

Appropriations:   Hale  of  Maine  —  since  1881. 
Commerce:  Frye  of  Maine  —  since  188 1. 
Finance:  Aldrich  of  Rhode  Island —  since  1881. 
Foreign  Relations:   Cullom  of  Illinois  —  since  1883. 
Interstate  Commerce:  Elkins  of  West  Virginia — since  1895. 
Judiciary:   Clark  of  Wyoming —  since  1895. 
Military  Affairs:  Warren  of  Wyoming — since  1895. 
Naval  Affairs:  Perkins  of  California  —  since  1893. 
Public  Expenditures:  Hale  —  since  188 1. 
Rules:  Crane  of  Massachusetts  —  since  1904. 

House  of  Representatives 

Appropriations:  Tawney  of  Minnesota  —  nine  terms. 

Banking  and  Currency:  Vreeland  of  New  York  —  six  terms. 

Foreign  Affairs:   Perkins  of  New  York — five  terms. 

Interstate  and  Foreign  Commerce:   Mann  of  Illinois  —  seven  terms. 

Judiciary:  Parker  of  New  Jersey  —  eight  terms. 

Military  Affairs :  Hull  of  Iowa  —  ten  terms. 

Naval  Affairs:   Foss  of  Illinois  —  eight  terms. 

Rivers  and  Harbors:  Alexander  of  New  York  —  seven  terms. 

Rules:   Dalzell  of  Pennsylvania  —  twelve  terms. 

Ways  and  Means:   Payne  of  New  York — thirteen  terms  (not  continuous). 

The  number  of  members  on  the  several  committees  varies,  but  on  the 
most  important  it  ranges  from  four  or  five  to  nineteen.  The  rules  committee 
in  the  House  has  ten  members. 


Congress  at  Work  277 

-that  each  committee  is  controlled  by  a  majority  of  members 
representing  the  dominant  party. 

In  the  lower  house,  the  committees  and  their  chairmen  are 
named  by  the  Speaker/  but  he  has  by  no  means  a.  free  hand,  for 
the  supporters  of  his  candidacy  for  this  high  office  are  not  unmind- 
ful of  their  pound  of  flesh.  The  Speaker  must  also  take  into  ac- 
count the  interests  of  his  party,  and  as  a  general  rule  the  men  who 
have  served  the  longest  terms,  i.e.,  shown  their  practical  talent 
in  retaining  an  exceedingly  slippery  office,  are  appointed  to  the 
leading  positions  on  committees.- 

In  the  Senate  the  committees  are  nominally  chosen  by  the  body 
itself,  but  in  reality  the  majority  of  each  committee  is  named  by 
a  committee  on  committees  selected  by  the  caucus  of  the  ma- 
jority party  in  that  house.  A  committee  of  the  minority  caucus 
likewise  selects  the  committee  members  from  that  party.  The 
task  of  arranging  and  rearranging  committees,  says  Mr.  Hale, 
'4s  intrusted  to  a  select  committee,  raised  by  the  conferences  of 
the  two  organizations,  who  go  over  the  whole  subject-matter  and 
report  to  their  respective  parties.  The  final  report  of  the  two 
committees  is  embodied  in  a  resolution.  ...  It  is  invariably 
the  habit  and  the  method  of  doing  business  that  Senators'  wishes 
respecting  committees  are  consulted."  ^  Sometimes,  as  we  have 
seen  above,  the  choice  of  the  caucus  is  merely  nominal,  the  real 
power  being  in  the  inner  circle  that  dominates  the  caucus."* 
It  is  in  the  committee  room  usually  behind  closed  doors  and 

■  secure  from  public  scrutiny  that  the  real  legislative  work  is  done.f 
Every  bill,  important  or  unimportant,  is  sent  to  the  committee 
having  jurisdiction  over  the  subject-matter  to  which  it  relates.® 

*  Except  the  committee  on  rules  which  was  made  elective  by  the  house  on 
March  19,  1910.    This  committee  chooses  its  own  chairman. 

^  Reinsch,  American  Legislatures,   pp.  65  ff. 

=*  Congressional  Record,  Vol.  XL,  part  i,  p.  538;  59th  Cong.,  ist  Sess. 

^  Above,  p.  268. 

^  Only  bills  which  are  reported  favorably  from  committees  have  much 
chance  of  being  acted  upon,  and  when  a  bill  is  once  favorably  reported  by  a 
committee,  its  chances  of  passage  are  very  high.  For  example,  in  the  Fifty- 
eighth  Congress,  19,209  bills  were  introduced  in  the  House;  the  committees 
reported  4904;  and  4041  were  passed.     Hinds,  Precedents,  Vol.  V,  p.  286. 

'  Bills  of  a  private  nature  are  referred  by  the  clerk  of  the  House  to  the 
committees  indicated  by  the  introducers.  Public  bills  are  referred  by  the 
Speaker,  but  his  reference  may  be  changed  by  the  House. 


278  American  Government  and  Politics 

The  recommendations  contained  in  the  President's  message  are 
likewise  so  distributed.  Quite  frequently  the  committees  origi- 
nate the  bills  —  especially  appropriation  bills  —  relating  to  the 
matters  placed  under  their  jurisdiction. 

Thousands  of  bills  which  go  to  committees  are  not  considered 
at  all,  but  a  measure  which  a  committee  reports  receives  an 
analysis  and  criticism  more  or  less  severe,  according  to  the  char- 
acter of  the  bill.  On  a  measure  of  vital  importance,  papers  and 
documents  relating  to  the  subject  may  be  secured  from  the  head 
of  the  executive  department  to  whose  duties  it  relates;  or  the 
officer  himself  may  be  requested  to  appear  personally  and 
answer  a  multitude  of  questions  propounded  by  the  committee 
members.  Friends  and  opponents  of  the  measures  pending  in 
committees  are  frequently  admitted  to  state  the  reasons  for  their 
positions;  hearings  may  even  be  held  in  various  points  through- 
out the  country,  and  witnesses  may  be  required  to  attend  the 
committee  meetings  and  give  evidence  very  much  in  the  same 
manner  as  in  a  courtroom. 

In  almost  every  case  the  measures  in  charge  of  a  particular 
committee  are  considered  or  formulated  by  a  sub-committee  (in 
-    which  the  minority  receives  scant  recognition),  and  the  whole 
committee  generally  accepts  its  report.     On  purely  party  ques- 
tions, such  as  the  tariff,  the  majority  members  of  the  committee 
draft  the  bill,  and,  when  the  measure  is  complete,  they  may  in- 
vite the  minority  members  in  to  vote  on  it  as  a  matter  of  form. 
With  regard  to  any  measure  referred  to  it,  a  committee  may  rec- 
ommend  its   adoption,  amend  it,  report   adversely,  delay  the 
report   indefinitely,  or   ignore   it   altogether.     In  the  House  it 
rarely  happens  that  a  member  is  able  to  secure  the  consideration 
of  a  bill  which  the  committee  in  charge  opposes;  but  in  the  Sen- 
ate a  greater  freedom  is  enjoyed  in  this  respect. 
/    'Owing  to  the  pressure  of  business  in  the  House,  it  is  impossible 
/  to  consider  each  bill  on  its  merits  and  arrive  at  a  vote  after  search- 
j  ing  debate  and  mature  deliberation;  and  within  recent  years  even 
I  very  important  measures  have  been  forced  through  as  they  have 
\  come  from  committee   without  any  serious  debate  or  a  single 
amendment.*  ^his,  of  course,  places  an  enormous  power  in  the 

'  Many  speeches  which  appear  in  the  Congressional  Record  are  not  delivered 
in  the  House  at  all,  but  are  prepared  by  members  for  the  benefit  of  their  con- 
stituents. 


Congress  at  Work  279 

hands  of  committees  and  changes  the  House  from  a  deliberative 
into  a  ratifying  assembly.  There  has  been  a  great  deal  of  criti- 
cism of  the  committee  system,  but  no  acceptable  substitute  has  as 
yet  been  suggestedXjAs  early  as  1880,  the  Independent  National, 
or  Greenback,  partydemanded  absolute  democratic  rules  for  the 
government  of  Congress,  placing  all  representatives  of  the  people 
upon  an  equal  footing,  and  taking  away  from  committees  "a 
veto  power  greater  than  that  of  the  President."  Complaints  are 
constantly  being  made  in  the  House  itself,  especially  by  members 
of  the  minority.  "  You  send  important  questions  to  a  committee," 
said  Mr.  Sherley,  in  the  House  in  1905;  "you  put  into  the  hands 
of  a  few  men  the  power  to  bring  in  bills,  and  then  they  are  brought 
in  with  an  ironclad  rule,  and  rammed  down  the  throats  of  mem- 
bers; and  then  those  measures  are  sent  out  as  being  the  deliberate 
judgment  of  the  Congress  of  the  United  States  when  no  deliberate 
judgment  has  been  expressed  by  any  man."  ^ 

This  division  of  each  house  of  Congress  into  a  large  number 
of  separate  committees,  no  doubt,  does  lead  to  many  deplorable 
results.  These  committees  work  with  little  or  no  reference  to 
one  another,  each  preparing  its  own  bills  with  slight  regard  to 
the  measures  in  the  other  committees.  The  committee  on  ways 
and  means  has  no  official  communication  with  the  committees  in 
charge  of  appropriations,  for  example.  That  is,  the  committee 
on  raising  revenues  has  no  way  of  balancing  its  accounts  over 
against  the  estimated  expenditures  as  they  are  shaped  by  the 
several  committees  on  appropriation  measures.  The  result  of 
this  practice  is  not  only  unfortunate  as  far  as  revenues  and  ex- 
penditures are  concerned;  it  often  leads  to  ill-adjusted  and  con- 
flicting legislation  even  on  matters  of  fundamental  importance  — ■ 
matters  which  in  England  would  receive  the  careful  attention  of 
the  Cabinet,  composed  of  the  leaders  of  the  majority  party. 

There  are  serious  constitutional  difficulties  in  the  way  of  our 
creating  such  a  system  of  Cabinet  responsibihty  for  legislation, 
but  it  may  be  that,  while  retaining  the  committee  system  now 
in  force,  we  may  secure  responsibihty  by  frankly  recognizing  the 
power  in  the  hands  of  the  chairmen  of  important  committees, 
and  by  holding  them  definitely  accountable  as  party  leaders. 
Indeed,  there  are  signs  that  we  are  going  in  that  direction.'^ 

'  Congressional  Record,  Vol  XL,  part  i,  p.  455;  59th  Cong.,  ist  Sess. 
^  Reinsch,  American  Legislatures,  p.  49. 


28o  American  Government  and  Politics 


The  Speaker  of  the  House  of  Representatives  * 

V.  In  this  tendency  to  develop  some  sort  of  responsibility  for 
legislative  policies  at  Washington,  the  power  of  the  Speaker  of 
the  House  of  Representatives  assumes  an  important  place. 

In  every  large  body  with  a  great  amount  of  business  to  transact 
there  must  be  some  directing  authority  to  see  that  the  necessary 
measures  are  disposed  of  promptly,  and  to  prevent  procedure 
from  faUing  into  chaos.  In  England,  this  leadership  is  avowedly 
vested  in  the  Prime  Minister,  who  is  the  acknowledged  head  of 
the  majority  party  in  the  House  of -Commons,  and  is  chiefly  re- 
sponsible for  the  successful  realization  of  the  party  policy  in  Par- 
liament. The  Speaker  of  the  House  of  Commons  under  these 
circumstances  does  not  feel  any  responsibility  in  this  matter,  and 
accordingly  maintains  an  attitude  of  impartiaUty  in  his  rulings 
and  decisions  —  at  least  in  theory.  In  the  beginning  of  our  fed- 
eral government,  the  Speaker  was  regarded  as  a  mere  moderator, 
but  as  the  House  grew  in  size  and  the  business  to  be  transacted 
increased  enormously,  it  became  impossible  for  him  to  sit  pas- 
sively and  see  the  measures  of  his  party  delayed  or  defeated  by 
the  dilatory  tactics  of  the  minority.  Hence  it  has  come  about 
that  the  Speaker  is  now  a  party  leader  holding  the  minority  in 
such  control  as  will  enable  the  majority  to  carry  its  principal 
measures.  "The  Speaker's  control  over  legislation  is  now,  under 
the  rules  and  practices  of  the  House,  almost  absolute, "  said  an 
editorial  writer  in  1897.  "The  people  know  this  now.  The  time 
has  passed  when  the  Speaker  could  exercise  his  vast  power  unsus- 
pected. Nor  can  he  shirk  his  responsibiHty.  No  bill  can  pass 
the  House  without  his  passive  approval,  and  that  in,  effect  is  the 
same  thing  as  active  advocacy."^  While  the  conduct  of  any  par- 
ticular Speaker  may  be  criticised,  the  inevitableness  of  this  de- 
velopment in  the  office  which  he  holds  is  apparent  to  any  person 

^  FoUet,  The  Speaker.  Readings,  pp.  256  ff.  The  dissatisfaction  with 
Mr.  Cannon's  policy  during  the  last  two  or  three  years  led  to  many  strong 
attacks  on  him  in  the  House,  even  by  members  of  his  own  party,  and  on 
March  19,  1910  the  "  insurgents  "  were  able  to  oust  him  from  the  rules  com- 
mittee and  make  that  committee  elective  by  the  House.  This  may  be  the 
beginning  of  a  new  regime  in  the  House.  On  this,  see  current  periodical  lit- 
erature. 

^  The  Nation,  quoted  in  Reinsch,  American  Legislatures,  p.  49. 


Congress  at  Work  281 

who  has  had  occasion  to  observe  a  large  democratic  assembly 
at  work. 

The  Speaker,  according  to  constitutional  law,  is  chosen  by  the 
House  of  Representatives,  but  in  fact  he  is  selected  at  a  caucus 
of  the  majority  party,  and  the  House  merely  ratifies  the  selection. 
The  ofiice  always  falls  to  some  member  of  long  service  who  has 
had  not  only  an  opportunity  to  master  the  intricate  details  of 
parliamentary  procedure,  but  also  has  learned  the  fine  art  of  po- 
litical manipulation  —  of  securing  support,  skilfully  distributing 
favors,  and  thwarting  opposition.  He  is  a  rnan  who  has  shown 
capacity  for  "getting  things  done"  on  the  floor  of  the  House  and 
in  the  committee  room.  He  does  not  rise  to  the  position  through 
his  power  as  an  orator  or  his  ability  to  command  the  approval  of 
the  country  in  the  same  way  that  an  English  member  of  Parlia- 
ment rises  to  the  position  of  Prime  Minister.  Nevertheless, 
he  is  in  a  very  real  sense  a  party  leader  and  the  success  of  his 
party  at  elections  depends  in  a  considerable  measure  on  his 
policy  and  conduct  in  office. 

The  elements  of  control  in  the  hands  of  the  Speaker  are 
undoubtedly  powerful.      He  appoints,  as  we  have  seen,    the 
committees  of  the  House  and  names  the  chairman  of  each  (ex-! 
cept  the  rules  committee,  which  was  made  elective  on  March ; 
19,  1910,  and  authorized  to  choose  its  own  chairman) ;  until  that  i 
date  he  was  ex  ofiicio  chairman  of  the  committee  on  rules,  which 
directs  a  considerable  portion  of  the  business  of  the  House, 
but  at  that  time  the  House  resolved  to  remove  the  Speaker 
from  that  committee;  he  may  refuse  to  put  dilatory  motions; 
he  may  recognize  whomsoever  he  pleases  on  the  floor  of  the 
House;   and  he  decides  questions  of  parliamentary  procedure 
subject  to  appeals  from  his  decisions.^ 

Inasmuch  as  the  ordinary  member  of  the  House  ^  can  bring  his 
own  measures  up  for  discussion  only  with  the  "  unanimous  consent 
of  the  House,"  the  Speaker  enjoys  a  considerable  power  in  this 
connection.  As  a  member  himself,  he  has  a  right  to  "object," 
and  thus  prevent  the  Representative  asking  the  attention  of  the 
House  from  getting  a  hearing  on  his  particular  schemes.  For 
a  long  time  it  was  customary  for  the  Speaker,  when  he  did  not 

*  Readings,  p.  260. 

2  The  most  important  committee  chairmen,  of  course,  occupy  a  privileged 
position.    See  above,  p.  274. 


282  American  Government  and  Politics 

want  any  matter  brought  up  under  the  rule  of  "unanimous  con- 
sent," to  notify  some  supporter  on  the  floor  to  object,  but  Speaker 
Cannon,  to  use  his  own  words,  "thought  the  better  way  and  the 
more  manly  and  fairer  way  was  to  exercise  his  right  as  a  member, 
to  object  to  a  request  for  unanimous  consent."  ^  Any  member, 
therefore,  who  wishes  to  call  up  a  measure  in  the  House  must 
now,  as  a  matter  of  practice,  visit  the  Speaker  in  advance  and 
secure  his  approval,  and  in  giving  his  consent  the  Speaker  is  not 
unmindful  of  the  service  he  has  secured  or  may  secure  from  the 
man  soliciting  his  favor.  Every  member  has  several  schemes  of 
his  own  relating  to  his  district  and  demanded  by  his  constituents. - 
He  must  get  a  hearing,  or  be  a  nonentity  in  the  House;  his  poHt- 
ical  career  depends  upon  it.  There  is  no  use  trying  to  explain  to 
his  fellow-citizens  the  rules  of  the  House  which  prevented  his  being 
heard.  The  Speaker,  therefore,  holds  the  key  to  the  situation. 
The  way  in  which  this  practice  sometimes  works  hardships  for 
individual  members  is  illustrated  in  this  account  by  Mr.  Cooper, 
a  member  from  Wisconsin:  — 

We  all  know  that  we  cannot  get  a  bill  passed  —  every  man  on 
the  floor  does,  Republican  or  Democratic  —  by  unanimous  consent 
unless  the  Member  presenting  it  first  goes  to  the  private  chamber  of 
the  Speaker  and  asks  to  be  recognized.  The  Speaker  does  not  have 
to  give  his  reasons  for  any  objections  he  may  have.  He  does  not  rise 
upon  the  floor,  but  in  his  private  chamber  he  objects.  I  wish  to  say 
that  the  present  Speaker  of  the  House  has  always  treated  me  with 
the  utmost  courtesy  and  kindness.  A  former  Speaker  of  this  House 
compelled  me  to  go  to  his  room  at  one  time.  I  went  there  to  present 
a  bill  which  provided  simply  for  the  changing  of  the  material  which 
was  to  go  into  a  public  building  and  which  had  been  recommended 
to  him  in  a  letter  from  the  office  of  the  Supervising  Architect.  ...  I 
went  to  the  Speaker's  chamber.  I  had  refused  on  a  former  occasion 
to  do  his  bidding.  When  I  went  to  his  room  he  said,  "I  will  see  about 
that;  come  in  again."  I  went  in  again.  He  did  not  ask  me  to  sit 
down.  He  said,  "I  do  not  think  I  can  do  that;  I  do  not  want  to  do 
that;  I  cannot  allow  that  to  come  up."  Not  only  that,  but  he  com- 
pelled me  to  stand  there,  and  when  a  perfect  stranger  came  in,  he  sat 
him  down  in  his  seat  and  turned  his  back  on  me.  A  very  important 
rule  had  previously  come  before  the  House  of  Representatives.  That 
same  Speaker  had  stopped  me  at  the  entrance  there  and  put  his  hand 
upon  my  breast  and  said,  "Mr.  Cooper,  you  will  oblige  me  very  much 

^  Reinsch,  Readings,  p.  234.  ^  See  above,  p.  270. 


Congress  at  Work  283 

by  not  opposing  this  rule."  That  rule  related  to  the  Pacific  Railroad 
funding  bill.  I  did  oppose  it.  I  was  the  only  RepubUcan  of  the  minority 
of  the  committee  that  reported  against  the  bill;  the  rule  was  modified, 
and  for  the  first  time  in  thirty  years  the  Pacific  Railroad  people  lost 
their  bill.  That  same  Speaker  refused  practically  to  recognize  me  for 
four  or  five  years  for  any  purpose,  and  never  when  he  could  help  it.^ 

Nevertheless,  many  bad  measures  are  checked  by  this  exercise 
of  power.  Members  of  the  House  do  not  have  the  time  to  con- 
sider the  measures  on  which  their  unanimous  consent  is  asked, 
and,  besides,  they  have  plans  of  their  own,  so  that  they  cannot  use 
discretion  in  objecting.  The  main  burden  of  responsibility  is  on 
the  Speaker,  and  consequently  he  openly  assumes  it. 

It  may  lead  to  unfortunate  results,  no  doubt,  and  it  enables  the 
Speaker  to  bring  the  new  member  of  Congress  into  Hne  with  "the 
old  guard"  by  closing  to  him  all  avenues  to  power  and  prefer- 
ment unless  he  capitulates  or  keeps  silence.  It  thus  permits  the 
Speaker  and  his  immediate  supporters,  even  though  constituting  a 
minority  of  the  entire  House,  to  check  any  spirit  of  independence 
and  criticism  shown  by  their  party  associates.  The  system  may, 
therefore,  virtually  establish  minority  rule  in  the  House,  because 
the  men  w^ho  would  be  independent  if  they  could,  taken  in  con- 
junction with  the  members  of  the  opposition  party,  might  con- 
stitute a  majority  of  the  whole  number  of  Representatives. 

The  Committee  on  Rules 

VI.  Until  March  19,  1910,  a  considerable  portion  of  the 
Speaker's  power  came  from  his  connection  with  the  committee 
on  rules  —  a  committee  consisting  of  himself,  and  two  majority 
and  two  minority  members  named  by  himself.  Inasmuch  as 
this  committee  virtually  had  the  authority  of  directing  impor- 
tant business  in  the  House,  it  became  the  object  of  bitter  at- 
tacks by  those  opposed  to  Speaker  Cannon's  policy.  At  length 
on  March  19,  1910,  the  Democrats,  aided  by  the  "  insurgent " 
Republicans  were  able  to  carry  a  resolution  to  the  effect  that  the 
committee  on  rules  should  consist  of  ten  members  —  six  of  the 
majority  and  four  of  the  minority,  the  Speaker  not  to  be  among 
the  number.  It  was  further  resolved  that  this  committee 
should  be  elective  instead  of  appointive.     The  effect  of  this 

'  Reinsch,  Readings,  p.  228. 


284  American  Government  and  Politics 

resolution  will  be  to  take  a  part  of  the  power  from  the  Speaker 
and  vest  it  in  an  independent  committee  chosen  by  the  House, 
and,  it  is  expected  that  this  committee  will  be  more  represen- 
tative of  the  will  of  the  majority.  The  House  is  thus  selecting 
a  small  group  to  direct  its  business,  but  the  Speaker's  power  is 
by  no  means  destroyed  by  this  action. 

This  important  committee  on  rules  may  at  any  time  recom- 
mend the  adoption  of  any  methods  of  procedure  in  connection 
with  a  particular  bill  which  will  secure  its  speedy  passage.  A 
report  of  this  committee  is  highly  privileged;  it  may  be  brought  in 
at  any  time;  only  a  motion  to  adjourn  may  be  entertained  during 
its  consideration;  and  the  Speaker  will  not  allow  any  dilatory 
motions  until  it  is  fully  disposed  of.  "The  essence  of  the  power 
of  the  committee  on  rules,"  says  Professor  Reinsch,  "Kes  in  the 
fact  that  it  has  the  right  to  report  at  any  time  a  resolution  that  a 
bill  or  other  measure  be  made  a  special  order  for  a  certain  day. 
As  nearly  all  the  important  measures  before  the  House  of  Repre- 
sentatives are  dealt  with  under  special  orders,  the  committee  on 
rules  has,  therefore,  in  its  hands  practically  the  complete  control 
of  the  course  of  business  in  the  House.  It  determines  what 
measures  shall  be  discussed,  how  much  time  is  to  be  given  to 
them,  and  in  what  order  they  are  to  be  brought  up."  ^  It  may,  for 
example,  recommend  to  the  House  a  resolution  which  will  have 
the  effect  of  stopping  debate  on  a  particular  measure,  and  force 
its  adoption  or  rejection  in  the  form  in  which  it  came  before  the 
House. ^  The  resolutions  introduced  by  this  committee,  however, 
are  subject  to  the  approval  of  the  House,  so  that  whenever  one  of 
its  drastic  recommendations  is  adopted,  it  is  only  because  it  has 
correctly  measured  the  temper  of  the  majority — disciplined  under 
party  leadership. 

The  Transaction  of  Legislative  Business  in  the  House ' 

VII.  With  this  preliminary  survey  of  some  of  the  institutions 
and  practices  of  Congress,  we  are  better  able  to  understand  the 

^  Reinsch,  American  Legislatures  and  Legislative  Methods,  pp.  45  ff.  Pro- 
fessor Reinsch's  statement,  however,  should  be  modified  somewhat,  for  many 
more  important  measures  than  his  words  imply  are  taken  up  without  special 
orders  from  the  rules  committee. 

^  For  a  "special  order"  from  the  rules  committee,  see  below,  p.  287. 

3  Readings,  p.  262. 


I 


Congress  at  Work  285 

procedure  of  this  body  from  day  to  day.  The  principles  govern- 
ing this  procedure  are  to  be  sought  in  Jefferson's  Manual  of  Par- 
liamentary Practice,  the  standing  rules  of  each  house,  and  the  vast 
number  of  precedents  established  during  the  history  of  Congress. 
Whoever  finds  sheer  enjoyment  in  unraveUing  complicated  prob- 
lems of  procedure  has  an  unUmited  field  for  self-indulgence  in  the 
eight  bulky  volumes  of  a  thousand  pages  each,  compiled  by  Mr.  A. 
C.  Hinds,  Clerk  of  the  Speaker's  Table,  bearing  the  title  of  Parlia- 
mentary Precedents  of  the  House  of  Representatives}  Fortunately, 
however,  the  principles,  or  rather  lack  of  principles,  governing  the 
conduct  of  business  in  either  house  from  day  to  day  may  be  under- 
stood by  the  mastery  of  a  few  fundamental  practices.^ 

At  the  opening  of  a  new  Congress  the  House  of  Representatives 
is  called  to  order  by  the  clerk  of  the  last  House,  who  calls  the  roll, 
and,  finding  a  quorum  present,  announces  that  they  are  ready  for 
nominations  for  Speaker.  The  majority  and  minority  put  for- 
ward their  candidates,  and  after  the  former's  nominee  is  duly 
ratified,  he  takes  the  oath  of  office  administered  by  the  member 
longest  in  continuous  service  of  the  House.  The  roll  is  called  by 
the  clerk,  and  the  Representatives  go  forward  to  be  sworn  in. 
The  other  officers  are  chosen,  and  the  President  of  the  United 
States  and  the  Senate  are  informed  that  the  House  is  ready  for 
business.  The  question  of  the  adoption  of  the  rules  of  the  pre- 
ceding Congress  is  then  threshed  out,  and  usually  carried  in  the 
face  of  the  traditional  protests  of  the  minority.  In  due  time  the 
Speaker  announces  his  appointments  to  committees,  the  personnel 
of  which  he  has  usually  determined  upon  before  Congress  convenes. 
The  Senate  differs  from  the  House  in  being  a  continuous  body.! 
At  each  new  Congress  only  one-third  of  the  members  are  renewed. 
The  presiding  officer,  the  Vice-President,  as  required  by  the  Con- 
stitution, takes  the  chair.  In  case  of  his  absence,  his  duties  are 
performed  by  a  president  pro  tempore.  The  newly  elected  Sena- 
tors are  called  in  alphabetical  order  by  the  secretary  of  the  Senate, 
and  each  Senator  in  turn  is  escorted  to  the  presiding  officer's  desk, 
usually  by  the  colleague  from  his  state,  and  there  takes  the  oath 
of  office.  The  President  and  House  are  duly  notified,  and  then 
the  Senate  is  also  ready  for  work. 

»  Copies  of  the  rules  of  both  houses  may  be  secured  by  writing  to  a  Sen- 
ator or  Representative. 

2  On  Senate  procedure,  see  above,  p.  275. 


286  American  Government  and  Politics 

The  House  of  Representatives  has  a  regular  order  of  business 
as  follows:  (i)  prayer;  (2)  reading  and  approval  of  the  journal; 
(3)  correctionof  reference  of  public  bills;  (4)  disposal  of  business 
on  Speaker's  table,  such  as  presidential  messages  and  Senate  bills 
which  can  be  referred  immediately  to  committees  or  are  similar 
in  character  to  some  already  approved  by  the  House;  (5)  un- 
finished business. 

Then  follows  (6)  what  is  now  known  as  the  "morning  hour," 
which  may  last  more  than  sixty  minutes  unless  interrupted.  To 
this  morning  hour  are  assigned  by  rule  certain  pubUc  measures 
relating  to  such  matters  as  the  judiciary  and  interstate  and  for- 
eign commerce,  and  carrying  no  appropriations.^  It  is  the  custom 
to  call  the  committees  in  alphabetical  order,  and  the  chairmen  of 
the  committees  in  their  turn  have  the  right  to  be  recognized  by 
the  Speaker.  The  extent  of  the  consideration  which  the  measure 
presented  by  the  chairman  receives  depends  upon  circumstances, 
but  the  way  in  which  business  is  done  under  this  rule  is  illustrated 
by  this  extract  from  the  Congressional  Record :  - 

The  Speaker.  The  Clerk  will  call  the  next  committee.  The 
Committee  on  the  Merchant  Marine  and  Fisheries  was  called. 

Mr.  Littlefield.  Mr.  Speaker,  by  direction  of  the  Committee 
on  the  Merchant  Marine  and  Fisheries,  I  call  up  the  bill  to  remove 
discriminations  against  American  sailing  vessels  in  the  coasting  trade. 

The  Speaker.  The  gentleman  from  Maine,  on  behalf  of  the 
Committee  on  the  Merchant  Marine  and  Fisheries,  calls  up  the  follow- 
ing bill,  which  the  Clerk  will  report. 

The  Clerk  reads  as  follows:    [the  bill]. 

Mr.  Littlefield.  Mr.  Speaker,  I  ask  unanimous  consent  that 
we  may  be  allowed  two  hours  on  a  side  for  debate,  the  time  on  the 
other  side  to  be  controlled  by  the  gentleman  from  Kentucky  and  the 
time  on  this  side  to  be  controlled  by  myself. 

The  Speaker.  The  gentleman  from  Maine  asks  unanimous 
consent  that  debate  upon  this  bill  close  in  four  hours,  two  hours  to 
be  controlled  by  himself  and  two  hours  by  the  gentleman  from  Ken- 
tucky.    Is  there  objection? 

There  was  no  objection. 

Mr.  Littlefield.  Mr.  Speaker,  I  yield  fifteen  minutes  to  the 
gentleman  from  Washington  [and  the  debate  proceeds].^ 

*  Readings,  p.  263. 

^  Congressional  Record,  Vol.  XLI,  part  i,  p.  108;   59th  Cong.,  2d  Sess. 


Congress  at  Work  287 

After  the  "morning  hour"  (7)  the  seventh  stage  of  business,  a 
motion  to  go  into  the  committee  of  the  whole  house  on  the  state 
of  the  Union,  is  in  order,  and  the  Speaker  must  entertain  it.  In 
the  committee  of  the  whole  House,  one  hundred  constitute  a 
quorum,  and  the  Speaker  resigns  the  chair  to  some  other  member. 
In  this  form,  the  House  debates,  passes  upon,  and  reports  to  it- 
self important  measures  relating  to  revenue  and  appropriations. 
A  matter  favorably  reported  by  this  committee,  of  course,  is 
adopted  in  due  form  by  the  House. 

After  the  committee  has  resolved  itself  into  the  House  again,  the 
last  order  of  business  (8)  is  the  order  of  the  day  —  now  obsolete. 

But  the  regular  order  of  business,  as  a  wag  once  remarked, 
''is  not  regular  and  not  an  order."  It  may  be  interrupted  at 
any  time  by  the  chairman  of  a  committee  in  charge  of  what  is 
called  privileged  business,  such  as  a  contest  over  the  right  of  a 
member  to  his  seat,  appropriation  and  revenue  bills,  improve- 
ments of  rivers  and  harbors,  the  admission  of  new  states,  and 
other  important  matters.^  Reports  of  conference  committees  of 
the  two  houses  are  likewise  highly  privileged.^ 

There  are  also  a  number  of  bills  relating  to  subjects  of  great 
public  interest  which  are  made  special  orders  for  certain  days 
by  the  committee  on  rules  with  the  approval  of  the  House. 
It  is  here  that  the  Speaker  and  "his  six  assistants"  manifest 
their  power  in  selecting  such  measures  as  they  wish  to  bring  up  for 
special  order,  and  in  determining  the  amount  of  time  that  may  be 
given  to  each  of  them.  This,  of  course,  must  be  submitted  to  a 
vote  of  the  House;  but,  as  has  been  indicated,  the  majority  always 
approves  the  policy  of  the  committee  on  rules. 

The  way  in  which  the  committee  operates  maybe  illustrated 
by  the  following  extract  from  the  Congressional  Record  (1908): 

Mr.  Dalzell.  Mr.  Speaker,  I  submit  the  following  privileged 
report  from  the  Committee  on  Rules. 

The  Speaker.  The  gentleman  from  Pennsylvania  submits  a 
report  from  the  Committee  on  Rules,  which  the  Clerk  will  report. 

The  Clerk  read  as  follows:  — 

Resolved,  That  immediately  upon  the  adoption  of  this  rule  and  at  any  tinie 
thereafter  during  the  remainder  of  this  session,  it  shall  be  in  order  to  take 
from  the  Speaker's  table  any  general  appropriation  bill  returned  with  Senate 
amendments,  and  such  amendments  having  been  read,  the  question  shall  be 

^  See  above,  p.  274.  ^  See  "  Calendar  Wednesday,"  below,  p.  290. 


288  American  Government  and  Politics 

at  once  taken,  without  debate  or  intervening  motion,  of  the  following  ques- 
tion: "Will  the  House  disagree  to  said  amendments  en  bloc  and  ask  a  con- 
ference with  the  Senate?"  And  if  this  motion  shall  be  decided  in  the  aflEirm- 
ative,  the  Speaker  shall  at  once  appoint  the  conferees,  without  the  interven- 
tion of  any  motion.  If  the  House  shall  decide  said  motion  in  the  negative 
the  effect  of  said  vote  shall  be  to  agree  to  the  said  amendments.  And  further, 
for  the  remainder  of  this  session  the  motion  to  take  a  recess  shall  be  a  privi- 
leged motion,  taking  precedence  of  the  motion  to  adjourn,  and  shall  be  de- 
cided without  debate  or  amendment.  And  further,  during  the  remainder  of 
this  session,  it  shall  be  in  order  to  close  debate  by  motion  in  the  House  before 
going  into  Committee  of  the  Whole,  which  motion  shall  not  be  subject  to 
either  amendment  or  debate.     (Applause  on  the  RepubUcan  side.) 

Mr.  Sulzer.  Mr.  Speaker,  would  it  not  be  well  to  add  to  that 
"That  hereafter  the  Democrats  shall  have  nothing  more  to  say"? 
(Laughter.) 

Mr.  Dalzell.  Mr.  Speaker,  the  purpose  of  this  rule,  like  the 
purpose  of  the  rule  that  was  introduced  yesterday,  is  to  expedite  the 
public  business. 

Mr.  Williams.    Mr.  Speaker  — 

The  Speaker.  Does  the  gentleman  from  Pennsylvania  3deld  to 
the  gentleman  from  Mississippi? 

Mr.  Dalzell.    Yes. 

Mr.  Williams.  I  wish  to  ask  the  gentleman  a  question.  I  wish 
to  ask,  before  we  proceed,  whether  the  minority  members  of  the  Com- 
mittee on  Rules  will  be  accorded  the  usual  twenty  minutes? 

Mr.  Dalzell.     They  will  not. 

Mr.  Williams.  They  will  not !  I  just  wanted  the  House  and 
the  country  to  know  that  fact  before  we  start  this  debate.^ 

A  motion  to  suspend  entirely  the  rules  of  the  House  of  Repre- 
sentatives may  be  also  entertained  by  the  Speaker  on  the  first 
and  third  Mondays  of  each  month  and  on  the  last  six  days  of  a 
session.  On  the  first  Monday  of  the  month,  individual  members 
of  the  House  have  preference  in  making  motions  to  suspend  the 
rules,  and  on  the  third  Monday  of  each  month  committees  are 
given  the  preference  in  making  such  motion.  It  requires,  how- 
ever, a  two-thirds  vote  to  suspend  the  rules,  and  as  the  committee 
on  rules  has  gradually  gained  power  in  bringing  in  special  orders 
of  business,  the  use  of  the  motion  to  suspend  has  gradually  de- 
clined. 

*  Reinsch,  Readings,  pp.  273  f. 


Congress  at  Work  289 


The  Rights  of  the  Minority  in  the  House 

After  this  survey  of  the  methods  by  which  the  majority  in  the 
House  of  Representatives  may  control  the  introduction  of  bills, 
reports  of  committees,  and  the  discussion  and  passage  of  meas- 
ures, it  might  be  presumed  that  the  minority  party  is  without 
power  to  influence  in  any  effective  manner  the  course  of  legis- 
lative procedure.  This  view,  however,  is  not  strictly  correct. 
By  exercising  certain  constitutional  privileges,  the  minority  may 
block  proceedings  and  go  a  long  way  toward  forcing  the  majority 
to  adopt  certain  policies.  The  Constitution  provides  that  on  the 
request  of  one-fifth  of  the  members  present,  the  roll  of  the  House 
must  be  called  on  any  question,  and  the  yeas  and  nays  of  the 
members  entered  upon  the  journal.  The  Constitution  further- 
more provides  that  no  business  shall  be  done  unless  a  quorum  is 
present,  and  the  minority,  in  the  House  or  Senate,  may  therefore 
frequently  raise  the  question  of  the  presence  of  a  quorum. 
Finally,  as  we  have  seen,  a  great  deal  of  the  legislative  business  is 
done  under  the  rule  of  unanimous  consent,  which,  of  course,  may 
be  steadily  refused  by  the  minority  members. 

More  than  once  the  leader  of  the  mi];it)rity  party  has  thrown 
down  the  gage  to  the  majority  leaders  and  frankly  informed  them 
that  unless  certain  policies  wete  adopted  the  minority  would 
exercise  all  of  its  privileges  under  the  rules  for  the  purpose  of 
obstructing  business.  A  notable  example  of  a  minority  threat 
occurred  in  March,  1908,  when  Mr.  John  Sharp  WiUiams,  the 
Democratic  leader,  announced  that  his  group  would  refuse  unani- 
mous consent  to  all  legislation  and  would  call  for  the  yeas  and 
nays  upon  every  affirmative  proposition  until  the  majority  would 
agree  to  report  on  certain  bills  —  measures  providing  for  employ- 
ers' liabiUty,  publicity  of  campaign  contributions,  free  wood  pulp 
and  free  print  paper,  and  regulating  the  granting  of  injunctions.^ 

A  new  right  was  given  to  the  minority  and  to  private  members 
by  a  rule  adopted  in  March,  1909.  All  bills  of  a  public  char- 
acter not  raising  or  appropriating  money  are  placed  upon  the 
House  Calendar,  and  money  bills  go  to  the  Union  Calendar. 
Under  the  new  rule,  after  any  bill  that  has  been  favorably  re- 
ported has  been  upon  either  of  these  calendars  for  three  days, 

*  Reinsch,  Readings,  p.  272. 
u 


290  American  Government  and  Politics 

it  may  be  placed  upon  the  special  calendar,  known  as  the  "  calen- 
dar of  unanimous  consent,"  at  the  request  of  any  member.  On 
the  days  when  it  is  in  order  to  move  the  suspension  of  the  rules, 
the  Speaker  must  direct  the  clerk  to  call  the  bills  on  this  calendar, 
but  if  there  is  an  objection  to  the  consideration  of  any  bill  so 
called,  it  must  be  stricken  from  the  list  and  cannot  be  replaced 
thereon. 

Under  a  rule  of  the  same  time  (March,  1909),  Wednesday 
of  each  week  (except  during  the  last  two  weeks  of  the  session) 
is  set  aside  as  "Calendar  Wednesday"  —  unless  otherwise  de- 
termined by  two-thirds  vote  —  for  the  automatic  calling  up  of 
bills,  as  in  the  case  of  the  "  morning  hour."* 

The  Final  Stages  of  a  Measure 

When  a  bill  has  passed  either  house,  it  is  transmitted  to  the 
other  body  for  consideration.  For  example,  when  the  Senate 
has  passed  a  bill,  it  thereupon  despatches  it  to  the  House  by  the 
secretary,  who,  on  his  announcement  by  the  doorkeeper  and 
recognition  by  the  Speaker,  addresses  that  assembly  in  the 
following  language:  "I  am  directed  by  the  Senate  to  inform  the 
House  that  it  has  passed  the  Senate  bill  No.  125  [giving  the  title], 
and  that  a  concurrence  of  the  House  therein  is  respectfully  re- 
quested." If  the  House  passes  the  bill  thus  brought  in,  the 
Senate  is  notified;  the  measure  is  then  signed  by  the  President  of 
the  Senate  and  the  Speaker  of  the  House,  and  is  sent  to  the  Presi- 
dent of  the  United  States  for  his  signature.  If  he  approves  the 
bill,  he  notifies  the  House  in  which  it  originated  of  his  action, 
and  sends  it  to  the  Secretary  of  State  for  official  publication. 
If  he  vetoes  the  measure,  he  returns  the  bill  to  the  house  in  which 
it  originated,  with  a  statement  of  the  reasons  for  his  action,  unless 
that  body  has  adjourned.  If  a  bill  originates  in  the  House,  it 
is  sent  to  the  Senate  and  goes  through  a  similar  process.^ 

'  See  above,  p.  286. 

^  Although  the  provisions  of  the  Constitution  are  explicit  to  the  effect  that 
every  order,  resolution,  or  vote  to  which  the  concurrence  of  the  Senate  and 
House  of  Representatives  may  be  necessary  (except  on  a  question  of  adjourn- 
ment) shall  be  presented  to  the  President,  Congress  has  devised  a  measure 
known  as  the  "concurrent  resolution,"  which,  although  it  clearly  has  the  effect 
of  law,  is  not  submitted  to  the  President  for  approval.  The  form  of  this  reso- 
lution is  as  follows:   Resolved,  by  the  House  of  Representatives  (the  Senate 


Congress  at  Work  291 

Whenever  a  bill  originating  in  one  house  is  amended  in  the 
other,  it  must  be  returned  to  the  first  for  reconsideration,  and  for 
adoption  or  rejection  as  amended.  If,  at  last,  the  houses  are 
unable  to  agree  upon  a  measure,  —  a  regular  occurrence  in  the 
case  of  important  bills,  — it  is  the  practice  for  the  presiding  officer 
of  each  body  to  appoint  representatives  to  a  conference  committee, 
as  it  is  called,  authorized  to  discuss  the  differences,  to  come  to 
some  agreement  upon  the  disputed  points,  and  report  back  to 
the  respective  houses  their  agreement,  or  their  inabihty  to  come 
to  terms.  As  a  general  principle  the  conference  committee,  in 
coming  to  an  agreement,  should  introduce  no  new  matter  into  the 
measure  which  it  has  under  consideration  —  that  is,  no  provision 
that  has  not  been  already  adopted  by  either  the  Senate  or  the 
House.  It  is,  of  course,  not  easy  to  determine  whether  new 
matter  has  been  introduced  into  a  long  and  compUcated  measure. 
Certainly  the  conferees  are  not  limited  in  their  action  to  the 
adoption  of  the  provisions  as  actually  passed  by  one  house  or 
the  other.  They  may,  and  often  do,  draft  a  compromise  propo- 
sition, perhaps  midway  between  the  extremes  demanded  by  the 
two  houses,  and  in  drafting  this  compromise  proposition  they 
may,  of  course,  change  the  language  of  the  bill.  When  a  con- 
ference committee  report  is  submitted,  each  house  adopts  it,  or 
rejects  it  as  a  whole;  it  does  not  amend. 

Securing  Information  for  Legislative  Action 

In  the  exercise  of  its  legislative  functions.  Congress  frequently 
makes  use  of  some  special  committee  of  investigation.  For 
example,  it  instituted  by  an  act  of  June  18,  1898,  an  industrial 
commission  consisting  of  five  members  of  the  House  of  Repre- 
sentatives, five  Senators,  and  nine  persons  appointed  by  the 
President  —  the  last  to  be  paid  salaries.  This  commission  was 
instructed  to  investigate  questions  appertaining  to  immigration, 

concurring)  that,  etc.;  or,  Resolved,  by  the  Senate  (the  House  of  Represent- 
atives concurring)  that,  etc.  From  the  beginning  of  the  government  it  has 
been  the  uniform  practice  of  Congress  not  to  present  concurrent  resolutions  to 
the  President  and  to  avoid  incorporating  in  such  resolutions  any  matter  in 
the  nature  of  legislation.  The  concurrent  resolution  is  frequently  used  in 
ordering  the  publication  of  documents,  in  paying  therefor,  and  in  incurring 
and  paying  other  expenses,  the  moneys  for  which  have  been  appropriated  and 
set  apart  by  law  for  the  use  of  the  two  houses. 


292  American  Government  and  Politics 

labor,  agriculture,  and  business,  and  report  to  Congress  and  sug- 
gest desirable  legislation  upon  these  subjects.  This  commission 
made  a  long  and  exhaustive  investigation  and  reported  to  Con- 
gress a  voluminous  mass  of  testimony  and  many  proposals  for 
legislative  action.  More  recently,  in  February,  1907,  Congress 
created  a  joint  commission  on  immigration,  consisting  of  three 
Senators,  three  members  of  the  House  of  Representatives,  and 
three  persons  (appointed  by  the  President)  —  charged  with  the 
duty  of  making  a  full  investigation  into  the  subject  of  immigration. 
A  generous  sum  of  money  was  placed  at  the  disposal  of  this 
commission;  it  established  headquarters;  employed  a  large  corps 
of  investigators;  sent  a  sub-commission  to  Europe,  and  in  short 
made  a  most  searching  inquiry  into  the  whole  problem  of  immi- 
gration. 

Sometimes,  in  conducting  investigations,  Congress,  by  a  joint 
resolution,  authorizes  executive  officers  of  the  government  to 
conduct  inquiries  and  report  on  specific  matters  subject  to  legisla- 
tion. For  example,  on  February  12,  1906,  by  joint  resolution, 
Congress  instructed  the  Interstate  Commerce  Commission  to 
make  examinations  into  the  subject  of  railroad  discriminations 
and  monopoUes,  and  to  report  on  the  same  from  time  to  time. 
Furthermore,  Congress  has  required  certain  federal  courts  to 
compel  witnesses  to  testify  before  the  Interstate  Commerce 
Commission,  and  the  Supreme  Court  has  held  this  law  consti- 
tutional. The  Court  declared  that  it  was  clearly  competent  for 
Congress  to  invest  the  Commission  with  an  authority  to  require 
the  attendance  and  testimony  of  witnesses  and  the  production 
of  books,  papers,  and  documents  relating  to  any  matter  legally 
committed  to  that  body  for  investigation.  In  considering, 
however,  the  question  as  to  whether  the  Commission  itself  could 
be  authorized  to  compel  obedience  to  its  orders  by  a  judgment  of 
fine  or  imprisonment,  the  Court  said:  "Except  in  the  particular 
instances  enumerated  in  the  Constitution  .  .  .  the  power  to 
impose  fine  or  punishment  in  order  to  compel  the  performance 
of  a  legal  duty  imposed  by  the  United  States,  can  only  be  exer- 
cised under  the  law  of  the  land  by  a  competent  judicial  tribunal 
having  jurisdiction  in  the  premises."  ^ 

Whatever  may  be  the  theory  as  to  the  power  of  Congress  to 


Hinds,  Precedents,  Vol.  IV,  pp.  114  ff. 


J 


Congress  at  Work  293 

investigate  the  working  of  executive  departments,*  there  is  as  a 
matter  of  fact  a  long  line  of  precedents  showing  that  both  houses 
from  time  to  time  assume  the  right  of  investigating  the  conduct 
of  executive  business.  For  example,  in  18 18,  the  House  of 
Representatives  appointed  a  committee  to  inquire  whether  any 
clerks  or  other  officers  in  any  of  the  departments  or  in  any  office 
at  the  seat  of  the  general  government  had  conducted  themselves 
improperly  in  their  official  duties,  and  authorized  the  committee 
to  send  for  persons  and  papers.  When  it  was  contended  that 
this  resolution  assumed  a  power  over  executive  departments  that 
belonged  to  the  President  alone,  and  would  thus  impair  executive 
responsibiUty,  it  was  answered  that  the  House  was  like  a  grand 
jury  to  the  nation  and  that  it  was  its  duty  to  inquire  into  the 
conduct  of  pubUc  officers.  A  year  later  the  House  asserted  that, 
having  the  constitutional  right  to  concur  in  the  appropriation  of 
public  moneys,  it  also  had  the  right  to  examine  into  the  applica- 
tion of  appropriations  for  the  purpose  of  discovering  whether 
they  had  gone  into  the  proper  channels.  From  that  day  to  this, 
it  has  been  a  frequent  practice  for  both  houses  to  make  investiga- 
tions into  the  various  branches  of  the  public  service. 

^  See  above,  p.  209. 


CHAPTER  XV 

THE   FEDERAL  JUDICIARY 

The  Constitution  of  the  United  States  makes  only  slight 
reference  to  the  structure  of  the  federal  courts.^  It  merely 
provides  that  the  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court  and  in  such  inferior  courts  as  Con- 
gress may  from  time  to  time  ordain  and  establish.  It  is  thus 
within  the  power  of  Congress  to  determine  the  number  of  Judges 
in  the  Supreme  Court  and  to  create  any  additional  tribunals 
which  may  be  deemed  necessary  for  the  transaction  of  federal 
business.  It  is  true,  the  Constitution  seeks  to  secure  a  certain 
degree  of  independence  for  the  judiciary,  by  prescribing  that  the 
Judges  of  both  the  Supreme  and  inferior  courts  shall  hold  office 
during  good  behavior  and  receive  for  their  services  a  compensa- 
tion not  to  be  diminished  during  their  continuance  in  office; 
but  in  reality  the  federal  courts  are  largely  creations  of  the 
legislature.^ 

While  Congress  may  not  remove  the  judges  of  an  inferior 
court,  except  by  the  process  of  impeachment,  it  may  get  rid  of 
them  by  aboUshing  the  court  altogether.  This  was  actually 
done  in  1802,  during  Jefferson's  administration,  when  the  Re- 
publican Congress  repealed  the  law  of  the  preceding  year  creating 
sixteen  circuit  judgeships  which  President  Adams  had  filled  with 
Federahsts  on  the  last  night  of  his  term.  The  constitutionality 
of  this  action  may  be  questioned,  but  the  precedent  stands. 
Of  course,  Congress  cannot  aboHsh  the  Supreme  Court,  remove 
any  of  its  Judges  except  by  impeachment,  or  reduce  their  salaries 
during  their  respective  terms  of  service,  but  it  may  ^  by  political 
methods  "pack"  the  Supreme  Court  very  much  as  the  House  of 
Lords  of  England  can  be  packed  if  it  should  refuse  to  adopt  a 
measure  passed  by  the  Commons.     It  may,  if  it  chooses,  re- 

^  Readings,  p.  273. 

'  Burgess,  Political  Science  and  Constitutional  Law,  Vol.  II,  p.  321. 
^  In  collusion  with  the  appointing  power  —  the  President  and  Senate. 

294 


The  Federal  Judiciary  295 

duce  the  number  of  Judges  by  providing  that,  on  the  death  or 
resignation  or  removal  of  any  Judge,  the  particular  judgeship 
shall  be  abolished.^  Again,  it  may  increase  the  number  of  Judges 
in  order  to  secure  the  appointment  of  men  known  to  entertain  cer- 
tain views  as  to  the  constitutionality  of  any  particular  measures. 
Congress  may  furthermore  influence,  in  a  way,  the  judicial  de- 
partment by  refusing  to  provide  the  requisite  number  of  inferior 
courts  or  adequate  processes.  However,  the  judiciary,  save  in 
two  or  three  instances,  has  not  been  controlled  by  any  of  these 
methods,  and  it  therefore  enj@ys,  for  practical  purposes,  a  high 
degree  of  independence  from  legislative  interference. 

The  framers  of  the  Constitution  evidently  contemplated  an 
independent  judicial  system  and,  while  the  constitutional  pro- 
vision with  regard  to  the  judiciary  is  not  self-executive,  an  im- 
perative mandate  is  certainly  laid  upon  Congress  to  organize 
the  Supreme  Court  and  to  create  inferior  courts.  As  Senator 
Spooner  has  put  it,  it  would  be  revolutionary  for  Congress  to 
omit  the  organization  of  the  Supreme  Court  and  the  estabhsh- 
ment  of  inferior  courts.^  Indeed,  Senator  Stone  has  gone  so 
far  as  to  say  that  the  inferior  courts  are  estabUshed  as  a  pubHc 
necessity  and  in  pursuance  of  a  pubhc  policy  outlined  in  the 
Constitution,  and  cannot  be  arbitrarily  aboKshed.  "Congress 
has  power  to  create,"  he  declared,  "  but  has  no  power  to  destroy. 
Congress  cannot  destroy  the  judiciary  any  more  than  the  judi- 
ciary can  destroy  Congress.  ...  If  to-day  Congress  should 
pass  an  act  aboHshing  all  the  circuit  and  district  courts  of  the 
United  States  without  substituting  other  tribunals  in  their  stead, 
can  there  be  any  doubt  that  the  Supreme  Court  would  declare 
the  act  to  be  unconstitutional  and  void?"^  It  is  difficult  to 
see,  however,  what  the  Court  could  accomplish  by  declaring 
such  a  law  void. 

The  Federal  Courts 

All  federal  Judges  are  nominated  by  the  President  and  ap- 
pointed by  and  with  the  advice  and  consent  of  the  Senate. 
With  regard  to  the  inferior  courts,  this  mode  of  appointment  is 

^  This  was  axitnally  done  in  1866  to  prevent  President  Johnsofl  from  filling 
vacancies. 

"^Congressional  Record^  Vol.  XL,  part  5,  pp.  41 15-41 17. 
^  Ibid.,  Vol.  XL,  part  5,  p.  4772. 


296  American  Government  and  Politics 

a  matter  of  practice  rather  than  of '  constitutional  law.  The 
Constitution  provides  that  the  President  and  Senate  are  to 
appoint  the  Judges  of  the  Supreme  Court;  but  authorizes  Con- 
gress to  vest  the  appointment  of  such  "inferior  officers"  as  it 
thinks  proper  in  the  President  alone,  in  the  courts  of  law,  or  in 
the  heads  of  departments.  By  uniform  practice,  however,  it 
is  settled  that  the  judges  of  the  inferior  federal  courts  are  not 
"inferior  officers"  whose  appointment  may  be  taken  from  the 
President  and  Senate  and  vested  in  some  other  authority.  The 
Judges  of  the  Supreme  and  inferior  courts  hold  office  during 
good  behavior,  and  therefore  cannot  be  removed  except  by  im- 
peachment. 

Under  these  constitutional  provisions  Congress  has  created  the 
following  scheme  of  courts:  — 

I.  At  the  head  of  the  system  stands  the  Supreme  Court  com- 
posed of  nine  Judge§.^  This  Court  holds  its  sessions  usually 
from  October  until  May  in  the  chamber  of  the  Capitol  formerly 
occupied  by  the  United  States  Senate.  The  most  important 
business  that  comes  before  it  involves  questions  of  constitutional 
law  brought  up  from  lower  federal  courts  or  from  state  courts  on 
appeal  or  by  writ  of  error.^ 

The  cases  are  presented  to  the  Judges  in  the  arguments  of 
attorneys  or  in  printed  briefs  or  by  both  methods.  A  case  as 
presented  contains  a  statement  of  the  facts  involved  in  the  con- 
troversy and  the  arguments  of  the  attorneys  on  the  law  and 
facts.  When  a  case  is  submitted,  it  is  the  duty  of  each  Justice 
to  examine  the  facts  and  the  arguments  and  to  apply  the  law. 
After  each  Judge  has  looked  at  the  case  independently,  a  con- 
ference is  held  at  which  the  various  points  are  discussed  at  length 
and  a  decision  reached.  Thereupon,  the  Chief  Justice  requests 
one  of  his  colleagues^  to  prepare  what  is  called  "the  opinion  of 
the  court, "  which  contains  the  conclusions  reached  by  the  majority 

*  A  Chief  Justice  and  eight  Associate  Justices.  Six  Judges  must  be  present 
at  each  trial  and  a  majority  is  necessary  for  a  decision.  The  salary  of  the 
Chief  Justice  is  $13,000  and  of  the  Associate  Justice  $12,500. 

^  It  is  not  very  often  that  the  Supreme  Court  is  called  upon  to  try  an 
original  case  affecting  ambassadors,  public  ministers,  and  consuls,  but  there 
have  been  several  cases  of  disputes  between  states  over  boundaries  and  other 
matters  which  have  been  brought  before  that  tribunal  as  a  court  of  first 
instance. 

^  Of  course  he  may  write  the  "  opinion  "  himself. 


The  Federal  Judiciary  297 

and  the  final  order  in  the  disposition  of  the  case.  This  "  opinion  " 
is  subjected  to  the  scrutiny  of  the  Judges  and  after  a  careful 
revision,  which  then  represents  the  solemn  and  final  conclusion 
of  the  Court,  it  is  printed  and  placed  on  record.  Any  Judge, 
who  agrees  with  the  judgment  of  the  majority,  but  bases  his 
conclusion  on  other  arguments  than  those  put  forward  in  the 
opinion,  may  prepare  what  is  called  a  "concurring  opinion," 
in  which  he  sets  forth  his  own  reasons  for  reaching  the  same 
end.  In  some  instances,  therefore,  a  majority  of  the  Court  may 
agree  that  a  particular  case  shall  be  decided  in  favor  of  the 
plaintiff  (or  defendant),  but  each  Justice  may  assign  different 
reasons  for  his  own  action. 

It  is  also  the  practice,  in  all  important  cases,  for  the  minority 
of  the  Judges  who  disagree  with  the  conclusion  reached  by  the 
majority  to  prepare  a  "dissenting  opinion,"  setting  forth  their 
reasons  for  beUeving  that  the  case  should  have  been  decided 
otherwise.  Sometimes  each  of  the  dissenting  Judges  prepares 
his  own  opinion;  sometimes  one  of  them  writes  an  opinion  which 
is  concurred  in  by  his  dissenting  colleagues.  As  a  matter  of 
fact,  many  crucial  cases  involving  constitutional  law  have  been 
decided  by  a  narrow  majority  —  within  recent  years,  five  to 
four.  The  opinions  thus  rendered  are  officially  published  as  the 
United  States  Reports,  and  at  the  present  time  the  opinions  for  a 
single  term  of  the  Court  extend  to  three  or  four  volumes.  They 
form  the  great  authoritative  source  of  information  on  the  histor- 
ical development  and  present  status  of  constitutional  law. 

2.  Immediately  under  the  Supreme  Court  is  a  Circuit  Court 
of  Appeals  in  each  of  the  nine  great  circuits  into  which  the  United 
States  is  divided.^  The  act  of  1891,  which  estabhshed  this  Court 
for  the  purpose  of  reUeving  the  Supreme  Court  somewhat  from 
the  pressure  of  business,  did  not  create  a  new  set  of  judges  for 

'  The  first  circuit  embraces  Maine,  Massachusetts,  New  Hampshire,  and 
Rliode  Island;  the  second,  Connecticut,  New  York,  and  Vermont;  the  third, 
Delaware,  New  Jersey,  and  Pennsylvania;  the  fourth,  Maryland,  North 
Carolina,  South  Carolina,  Virginia,  and  West  Virginia;  the  fifth,  Alabama, 
Florida,  Georgia,  Louisiana,  Mississippi,  and  Texas;  the  sixth,  Kentucky, 
Michigan,  Ohio,  and  Tennessee;  the  seventh,  Illinois,  Indiana,  and  Wiscon- 
sin; the  eighth,  Arkansas,  Colorado,  Oklahoma,  Iowa,  Kansas,  Minnesota, 
Missouri,  Nebraska,  New  Mexico,  North  Dakota,  South  Dakota,  Ut^ah,  and 
Wyoming;  the  ninth,  Alaska,  Arizona,  California,  Idaho,  Montana,  Nevada, 
Oregon,  Washington,  and  Hawaii. 


298  American  Government  and  Politics 

each  Court  of  Appeals.  It  merely  provided  that  an  additional 
circuit  judge  should  be  appointed  for  each  of  the  nine  circuits; 
and  that  the  Justice  of  the  Supreme  Court  of  the  United 
States  assigned  to  the  circuity  the  circuit  judges  and  the 
district  judges  within  that  circuit  should  be  competent  to  sit 
as  judges  of  the  Circuit  Court  of  Appeals/  A  Circuit  .Court 
of  Appeals,  therefore,  consists  of  three  of  these  judges,  of  whom 
two  may  constitute  a  quorum;  provided  that  no  justice  or 
judge  before  whom  a  case  may  have  been  tried  in  a  District  or 
Circuit  Court  may  sit  on  the  trial  or  hearing  of  the  same  in  the 
Circuit  Court  of  Appeals. 

The  Circuit  Court  of  Appeals  has  the  right  to  review,  by  appeal 
or  on  writ  of  error,  decisions  in  the  lower  federal  courts.  Circuit 
and  District,  and  its  decision  is  final  in  a  large  number  of  cases, 
such  as  controversies  between  aHens  and  citizens,  suits  between 
citizens  of  different  states,  and  cases  arising  under  patent,  rev- 
enue, and  criminal  laws.  However,  the  Circuit  Court  of 
Appeals  may  ask  the  Supreme  Court  for  instructions  on  any 
point  of  law;  and  the  Supreme  Court  may  call  the  case  up  and 
decide  it,  or  may  inquire  by  writ  of  certiorari  into  final  causes 
pending  in  the  Circuit  Court  of  Appeals.  All  appealed  cases 
from  the  lower  federal  courts  within  a  circuit  go  into  the  Circuit 
Court  of  Appeals,  unless  they  involve  the  jurisdiction  of  the 
lower  court,  final  sentences  and  decrees  in  prize  cases,  capital 
punishment,  or  the  Constitution,  or  the  constitutionality  of 
laws,  or  treaties  of  the  United  States,  or  the  constitutionaUty 
of  an  act  of  any  state  —  in  which  instances  appeals  may  be 
taken  directly  from  the  lower  courts  to  the  Supreme  Court  of 
the  United  States.  This  reserves,  therefore,  to  the  Supreme 
Court  the  decision  of  cases  involving  constitutionality,  and  gives 
to  the  Circuit  Court  of  Appeals  the  final  decision  in  nearly  all 
other  cases  involving  merely  the  application  of  ordinary  law. 
As  a  matter  of  fact,  however,  it  is  relatively  easy  to  raise  the 

*  The  law  provides,  "  In  case  the  full  court  [of  appeals]  at  any  time  shall 
not  be  made  up  by  the  attendance  of  the  Chief  Justice  or  Associate  Justice 
of  the  Supreme  Court  of  the  United  States  and  circuit  judges,  one  or  more 
district  judges  shall  be  competent  to  sit  in  the  court  ...  as  shall  be  desig- 
nated by  the  court."  At  least  one  term  must  be  held  annually  at  a  place 
designated  bj^  law,  and  other  terms  are  held  at  times  and  places  designated 
by  tiie  order  of  the  court. 


The  Federal  Judiciary  299 

question  of  constitutionality,  so  that  this  new  Court  has  not  been 
able  to  render  the  expected  services  in  reUeving  the  great  tri- 
bunal at  Washington. 

3.  Immediately  under  the  Circuit  Court  of  Appeals  there  is 
the  Circuit_Court.  In  each  of  the  nine  great  circuits,  men- 
tioned above,  there  are  two,  three,  or  four  judges,  and  to  each 
of  these  circuits  is  assigned  one  of  the  nine  Justices  of  the 
Supreme  Court  of  the  United  States.  Many  Circuit  Courts 
are  held  annually  at  different  points  in  each  circuit,  and  such  a 
court  may  be  constituted  by  one  Circuit  Court  judge,  the  Justice 
of  the  Supreme  Court  assigned  to  the  circuit,  or  a  district  judge 
alone.  Sometimes  a  circuit  judge  and  a  district  judge,  or  a  Jus- 
tice of  the  Supreme  Court,  sitting  together,  hold  a  Cijrcuit  Court.* 

The  jurisdiction  of  the  Circuit  Court  embraces  a  vast  range  of 
compHcated  matters  which  cannot  be  enumerated  here.  It  has, 
for  example,  original  and  exclusive  jurisdiction  over  federal 
criminal  cases  involving  capital  punishment;  but  in  other  crim- 
inal matters  its  jurisdiction  is  concurrent  with  that  of  the  lower 
District  Court.  It  has  jurisdiction  over  suits  between  citizens 
of  different  states  involving  at  least  $2000  above  costs  and 
interest,  over  acts  in  restraint  of  trade,^  over  offences  against  the 
contract  labor  law,  and  other  matters  specifically  prescribed  by 
acts  of  Congress. 

4.  The  lowest  federal  court  is  the  District  Court.  The  United 
States  is  di\dded  into  about  ninety_districts  to  each  of  which  is 
usually  assigned  one  judge.'  Some  districts  embrace  a  single 
state;  for  example,  Colorado,  Connecticut,  Delaware,  Indiana, 
Rhode  Island,  South  CaroHna,  South  Dakota,  each  constitutes 
a  district.  Other  districts  embrace  only  portions  of  a  single 
state;  for  example,  in  New  York  State,  there  are  four  districts. 

The  jurisdiction  of  a  District  Court  can  be  understood  only 
by  a  review  of  a  large  number  of  statutes,  and  it  is  so  technical 
in  character  that  it  need  be  studied  only  by  a  practising  lawyer 
whose  business  it  is  to  discover  the  proper  forum  into  which  his 

>  As  a  matter  of  fact,  the  Supreme  Court  Justice  takes  little  part  in  the 
trying  of  cases  in  Circuit  Courts.  In  important  cases  two  judges  sit  together 
in  Circuit  Courts. 

^  See  Readings,  p.  359. 

3  Sometimes  there  is  only  one  judge  for  two  districts,  and  again  there  are 
two  or  three  judges  for  a  single  populous  district. 


300  American  Government  and  Politics 

clients'  cases  may  be  taken.^  Its  business  embraces,  among 
others,  admiralty  and  maritime,  bankruptcy,  and  federal  crim- 
inal cases,  except  capital  offences. 

In  close  relation  to  the  judiciary  are  the  Department  of  Justice 
and  the  great  army  of  United  States  attorneys  and  marshals 
in  the  judicial  districts  in  the  states  and  territories.^  The 
head  of  the  Department  of  Justice  is  the  Attorney- General  of 
the  United  States,  who  is  the  chief  law  officer  of  the  federal 
government.  ''He  represents  the  United  States  in  matters  in^ 
volving  legal  questions;  he  gives  his  advice  and  opinion  when 
they  are  required  by  the  President  or  by  the  heads  of  the  other 
executive  departments  on  questions  of  law  arising  in  the  ad- 
ministration of  their  respective  departments;  he  appears  in  the 
Supreme  Court  of  the  United  States  in  cases  of  especial  gravity 
and  importance;  he  exercises  a  general  superintendence  and 
direction  over  the  United  States  attorneys  and  marshals  in  all 
the  judicial  districts  in  the  states  and  territories;  and  he  pro- 
vides special  counsel  for  the  United  States  whenever  required 
by  any  department  of  the  government."  The  enforcement  of 
important  federal  laws,  therefore,  depends  largely  upon  the 
activity  of  the  Attorney-General,  or  rather  upon  the  pressure 
brought  to  bear  upon  him  by  the  President. 

In  each  of  the  judicial  districts  there  is  a  United  States  district 
attorney  ^  who  represents  the  government  in  the  prosecution  and 
defence  of  causes  arising  within  his  district.  There  is  also  in 
each  district  a  marshal  ^  whose  duty  it  is  to  enforce  the  orders  of 

*  In  addition  to  this  regular  hierarchy  of  courts,  Congress  has  created  from  I 
time  to  time  special  courts.    There  is  a  Court  of  Claims  composed  of  a  chief  | 
justice  and  four  associate  judges  whose  duty  it  is  to  hear  claims  against  the 
federal  government.     If  it  decides  that  a  certain  amount  of  money  is  due 
from  the  United  States  to  any  party,  it  cannot  order  payment,  but  must  de- 
pend upon  appropriations  made  by  Congress.     This  Court  partially  relieves 
Congress  of  the  great  political  pressure  brought  on  behalf  of  private  claims 
Congress  has  also  created  a  judicial  system  for  the  District  of  Columbi 
comprising  a  court  of  appeals,  a  supreme  court,  and  minor  courts  of  th 
justices  of  the  peace,  a  police  court,  and  a  juvenile  court.    The  Payne- AldricI 
tariff  law  of  igog  created  a  Customs  Court,  consisting  of  a  presiding  judg 
and  four  associates,  to  which  court  appeals  may  be  taken  from  the  decisioD 
of  the  Board  of  General  Appraisers  on  questions  of  jurisdiction  and  law 

^  See  above,  p.  297. 

'  With  one  or  more  assistants. 

*  Assisted  by  a  number  of  deputies. 


J 


The  Federal  Judiciary  301 

the  federal  courts,  to  arrest  offenders  against  federal  law,  and 
to  otherwise  assist  in  the  execution  of  that  law.  Both  of  these 
officers  are  appointed  by  the  President  and  Senate. 

The  Federal  Judicial  Power 

The  jurisdiction  of  the  federal  courts  is  defined  in  the  Con- 
stitution. It  embraces,  on  the  one  hand,  cases  affecting  certain 
persons  or  parties  and,  on  the  other  hand,  cases  relative  to  certain 
matters. 

1.  In  the  first  place,  the  jurisdiction  of  the  federal  courts  covers 
cases  affecting  ambassadors,  other  pubHc  ministers  and  consuls; 
controversies  to  which  the  United  States  is  a  party;  controversies 
between  two  or  more  states,  between  a  state  and  citizens  of 
another  state,  between  citizens  of  different  states,^  and  between 
a  state  or  the  citizens  thereof  and  foreign  states,  citizens  or 
subjects  —  with  the  provision  that  the  judicial  power  shall  not 
extend  to  any  suit  in  law  or  equity  commenced  or  prosecuted 
against  one  of  the  United  States  by  American  citizens  or  by 
citizens  of  foreign  states.  When  any  of  these  parties  are  in- 
volved in  controversies,  the  case  may  come  under  federal  judicial 
power,  regardless  of  the  nature  of  the  matter  in  controversy. 
So  much  for  the  jurisdictiofi  of  the  federal  courts  over  parties. 

2.  In  the  next  place,  tlie  federal  judicial  power  extends  to 
certain  matters,  regardless  of  the  character  of  the  parties  involved 
in  the  controversy;  that  is,  to  all  cases  in  law  and  equity  arising 
under  the  Constitution,  the  statutes,  and  the  treaties  of  the  United 
States  and  to  all  admiralty  and  maritime  cases. 

A  case,  according  to  Story,^  arises  "when  some  subject  touch- 
ing the  Constitution,  laws,  or  treaties  of  the  United  States  is 
submitted  to  the  courts  by  a  party  who  asserts  his  rights  in  the 
form  prescribed  by  law."  In  other  words,  a  case  in  law  or  equity 
comes  within  the  federal  judicial  power  whenever  a  correct  de- 
cision of  the  controversy  involves  in  any  way  the  interpretation 
of  the  Constitution  or  federal  laws  or  treaties.^ 

*  Also  between  citizens  of  the  same  state  claiming  lands  under  grants  of 
different  states.  For  the  purposes  of  suing  in  federal  courts  corporations  are 
regarded  as  "  citizens,"  but  for  other  purposes  they  are  regarded  as  "  persons." 

^  Commentaries,  Vol.  II,  section  1646. 

3  Of  course  it  is  often  the  duty  of  state  courts  to  apply  federal  law,  but 
provision  is  made  for  appeal  from  their  decisions.    See  below,  p.  308. 


302  American  Government  and  Politics 

With  the  exception  of  two  classes  of  cases,  the  Constitution 
does  not  say  which  of  the  federal  courts  shall  have  jurisdiction 
over  any  particular  matter,  but  leaves  the  distribution  of  the 
judicial  powers  to  Congress.  The  two  exceptions  are  cases 
affecting  ambassadors,  other  pubhc  ministers,  and  consuls  and 
cases  in  which  a  state  may  be  a  party.  Over  such  cases  the  Su- 
preme Court,  under  the  Constitution,  has  original,  but  not  ex- 
clusive, jurisdiction;  that  is  to  say,  whenever  any  such  case 
arises,  it  may  be  taken  into  the  Supreme  Court  in  the  very  begin- 
ning, without  having  been  previously  tried  in  any  lower  court. 
Since,  however,  the  Constitution  does  not  confer  exclusive  juris- 
diction in  such  matters,  it  is  left  for  Congress  to  decide  whether 
any  other  federal  court  or  courts  may  also  try  these  cases  and 
under  what  Umitations.  Over  all  other  cases  faUing  within  the 
scope  of  the  federal  judicial  power,  the  Supreme  Court  has  only 
appellate  jurisdiction  as  to  law  and  fact,  subject  to  such  excep- 
tions and  under  such  regulations  as  Congress  may  make. 

The  Great  Writs 

In  the  exercise  of  their  judicial  functions  the  federal  courts 
have  the  power  of  issuing  certain  writs  which  affect  very  funda- 
mentally the  rights  of  citizens. 

I.  The  first  and  most  famous  of  these  writs  is  that  of  habeas 
corpus.  This  writ  is  designed  to  secure  to  any  imprisoned  person 
the  right  to  have  an  immediate  prehminary  hearing  for  the  pur- 
pose of  discovering  the  reason  for  his  detention.  For  example, 
a  United  States  marshal  in  the  execution  of  the  revenue  laws 
kills  a  citizen  of  a  state  and  is  arrested  and  imprisoned  by  the 
state  authorities.  His  attorney  apphes  to  some  near-by  federal 
court  for  a  writ  of  habeas  corpus,  which  writ  will  require  the 
state  officer  having  charge  of  the  prisoner  to  produce  him  in 
the  federal  court  where  the  reasons  for  his  arrest  and  detention 
are  to  be  examined. 

The  Supreme  Court  and  Circuit  and  District  courts  of  the 
United  States  have  the  power  of  issuing  writs  of  habeas  corpus, 
and  the  several  justices  and  judges  of  these  courts  within  their 
respective  jurisdictions  have  the  power  of  granting  the  writ  for 
making  inquiries  into  the  cause  of  arrest.  This  does  not  mean, 
however,  that  a  federal  judge  may  issue  the  writ  indiscriminately. 


The  Federal  Judiciary  303 

It  can  only  be  issued  when  a  prisoner  is  in  jail  under  federal 
custody  or  authority;  or  for  some  act  done  or  omitted  in  pur- 
suance of  a  law  of  the  United  States  or  the  order,  process,  or  decree 
of  some  federal  court  or  judge;  or  is  in  prison  in  violation  of  the 
Constitution  or  some  law  or  treaty  of  the  United  States;  or  is 
a  citizen  of  a  foreign  country  claiming  to  be  imprisoned  for 
some  act  committed  with  the  sanction  of  his  government.^  In 
other  words,  a  federal  judge  cannot  issue  a  writ  of  habeas  corpus 
in  behalf  of  some  person  who  merely  claims  that  he  is  detained  in 
\iolation  of  the  law  of  a  commonwealth.  He  must  be  a  prisoner 
held  either  under  federal  authority,  or  by  state  authority  in 
violation  of  some  law  of  the  United  States. 

The  application  for  a  writ  of  habeas  corpus  is  made  to  the 
proper  court  by  a  complaint  in  writing,  signed  by  the  prisoner, 
setting  forth  the  facts  concerning  his  detention  and  the  reasons 
for  his  imprisonment,  if  they  are  known  to  him,  and  stating  in 
whose  custody  he  is  held.  It  is  the  duty  of  the  judge  upon 
application  to  grant  the  writ,  unless  it  is  evident  from  the  appli- 
cation itself  that  the  prisoner  is  not  Entitled  to  it  under  the  law. 
Within  a  certain  time  the  person  to  whom  the  writ  is  directed 
must  make  due  return,  bringing  the  prisoner  before  the  judge 
and  certifying  as  to  the  cause  of  his  detention.  The  court  or 
judge,  thereupon,  must  proceed  in  a  summary  way  to  examine 
the  facts,  hear  the  testimony  and  arguments,  and  either  release 
the  prisoner  (if  he  is  detained  in  violation  of  the  law),  or  remand 
him  for  trial  if  there  is  no  warrant,  under  the  law,  for  interfering. 

2.  The  second  writ  is  the  writ  of  mandamus  which  is  used 
against  pubhc  officials,  private  persons,  and  corporations  for 
the  purpose  of  forcing  them  to  perform  some  duty  required  of 
them  by  law.^  The  mandamus  is  properly  used  against  executive 
officers  to  compel  them  to  perform  some  ministerial  duty.^ 
Where  the  duty  is  purely  discretionary  and  its  performance 

'  Taylor,  Jurisdiction  and  Procedure  of  the  United  States  Supreme  Court, 
P-  503- 

^  It  was  early  settled  by  judicial  decision  that  no  federal  court  (except  the 
Supreme  Court  of  the  District  of  Columbia)  could  issue  the  writ  of  man- 
damus except  in  aid  of  the  exercise  of  jurisdiction  acquired  in  some  other  way. 

^  An  excellent  example  of  the  use  of  mandamus  is  afforded  by  the  case  of 
Postmaster-General  Kendall,  who  was  ordered  by  the  Supreme  Court  to  obey 
the  provisions  of  an  act  of  Congress  directing  him  to  pay  certain  sums  due 
to  mail-carriers  under  government  contract  (1837). 


304  American  Government  and  Politics 

depends  upon  the  pleasure  of  the  official  or  upon  his  own  inter- 
pretation .of  the  law,  the  court  will  not  intervene.  In  general, 
any  one  seeking  the  writ  of  mandamus  to  compel  a  federal 
officer  to  perform  an  act  must  show  that  he  has  no  other  ade- 
quate legal  remedy  and  that  he  has  a  clear  legal  right  to  have 
the  action  in  question  performed  by  the  officer.  "It  is  ele- 
mentary law  that  mandamus  will  only  issue  to  enforce  a  min- 
isterial duty  as  contradistinguished  from  a  duty  that  is  merely 
discretionary.  This  doctrine  was  clearly  and  fully  set  forth  by 
Chief  Justice  Marshall  in  Marbury  v.  Madison  and  has  since  been 
many  times  reasserted  by  this  Court."  ^  The  writ  of  mandamus 
is  also  often  used  to  compel  an  inferior  court  to  pass  upon  some 
matter  within  its  jurisdiction  which  it  has  refused  to  hear  or 
act  upon.^ 

3.  The  third  great  writ  is  the  writ  (or  bill)  of  injunction. 
This  writ  may  be  used  for  many  purposes.  Sometimes  it  takes 
the  form  of  a  mandatory  writ  ordering  some  person  or  corpora- 
tion to  maintain  a  status  quo  by  performing  certain  acts.  Thus, 
for  example,  the  employees  of  a  railway  may  be  forbidden  to 
refuse  to  handle  the  cars  of  some  company  which  they  wish  to 
boycott;  in  other  words,  may  be  ordered  to  continue  to  perform 
their  regular  and  customary  duties  while  remaining  in  the  ser- 
vice of  their  employer.^  Sometimes  the  injunction  takes  the 
form  of  a  temporary  restraining  order  forbidding  a  party  to  alter 
the  existing  condition  of  things  in  question  until  the  merits 
of  the  case  may  be  decided.  Sometimes  the  writ  is  in  the  form 
of  a  permanent  injunction  ordering  a  party  not  to  perform  some 
act  the  results  of  which  cannot  be  remedied  by  any  proceeding 
in  law. 

The  question  of  injunctions  has  been  brought  into  national 
politics  by  the  frequency  with  which  federal  courts  have  issued 
them  in  labor  disputes.  Inasmuch  as  corporations  are  often 
"citizens"  of  some  other  state  than  that  in  which  their  striking 
laborers  reside,  it  is  easy  for  them  to  seek  reUef  at  the  hands  of  the 
federal  courts  on  the  ground  of  diversity  of  citizenship.''  In- 
junctions are  also  occasionally  granted  by  the  federal  courts  in 

1  The  United  States,  etc.,  v.  Lament,  155  U.  S.  R.,  308. 
^Taylor,  Jurisdiction  and  Procedtire,  pp.  512  ff. 
3  Judson,  The  Law  of  Interstate  Commerce  (1905),  p.  127,  note  3. 
<  See  above,  p.  301  and  note  i. 


The  Federal  Judiciary  305 

cases  involving  interference  with  interstate  commerce  —  a 
matter  coming  under  federal  authority.  For  example,  during 
the  famous  Chicago  strike  in  1894,  the  federal  district  court  in 
that  city  issued  a  general  injunction  to  all  persons  concerned, 
ordering  them  not  to  interfere  with  the  transmission  of  the  mails 
or  with  interstate  commerce  in  any  form.  Mr.  Debs,  who  was 
directing  the  strike  wliich  was  tying  up  interstate  commerce, 
was  arrested,  fined,  and  imprisoned  for  refusing  to  obey  this  in- 
junction. Debs  thereupon,  through  his  counsel,  claimed  the 
right  to  jury  trial,  asserting  that  the  court  could  not  impose  a 
penalty  which  was  not  provided  by  statute.  On  appeal,  the 
Supreme  Court  affirmed  the  right  of  the  lower  court  to  grant  an 
order  enjoining  any  person  from  interfering  with  interstate 
commerce  over  natural  or  artificial  highways,  and  held  that  im- 
prisonment for  contempt  of  court  did  not  violate  the  principle  of 
due  process  of  law. 

Accordingly,  this  power  of  the  federal  courts  to  issue  injunc- 
tions was  brought  into  poUtics  by  working-men  who  claimed 
that  those  courts,  in  many  instances,  issued  writs  hastily,  arbi- 
trarily, and  with  prejudice  to  their  legal  rights.  In  1908  the 
question  was  taken  up  by  both  of  the  great  poUtical  parties.  The 
Democratic  party  said  in  its  platform:  ''We  believe  that  the 
parties  to  all  judicial  proceedings  should  be  treated  with  rigid 
impartiality  and  that  injunctions  should  not  be  issued  in  any 
cases  in  which  injunctions  would  not  issue  if  no  industrial  dispute 
were  involved  ";  and  furthermore  reiterated  the  pledges  of 
1896  and  1904  —  trial  by  jury  in  all  cases  of  persons  arrested 
for  indirect  contempt ;  that  is,  contempt  committed  outside  the 
presence  of  the  court.  On  account  of  the  stand  taken  by  the 
Democratic  party,  Mr.  Gompers,  President  of  the  American 
Federation  of  Labor,  came  out  openly  in  support  of  Mr.  Bryan 
and  attempted  to  secure  for  him  the  labor  vote  throughout  the 
United  States. 

The  issue  was  also  taken  up  by  the  Republicans.  In  their 
platform  they  declared,  "that  the  rules  of  procedure  in  the  federal 
courts  with  respect  to  the  issuance  of  the  writ  of  injunction 
should  be  more  accurately  defined  by  statute  and  that  no  injunc- 
tion or  temporary  restraining  order  should  be  issued  without 
notice,  except  where  irreparable  injury  would  result  from  delay, 
in  which  case  a  speedy  hearing  thereafter  should  be  granted." 


3o6  American  Government  and  Politics 

In  his  acceptance  speech,  Mr.  Taf t  said  that  threatened  unlawful 
injuries  to  business  could  only  be  satisfactorily  met  by  an  injunc- 
tion to  prevent  them,  because  a  suit  for  damages  offered  no 
adequate  remedy.  He  furthermore  urged  that  the  interjection 
of  a  jury  trial  between  the  orders  of  a  court  and  their  enforce- 
ment would  fundamentally  weaken  the  power  of  the  court. 
"Under  such  a  provision,"  he  contended,  "a  recalcitrant  witness 
who  refuses  to  obey  a  subpoena,  may  insist  on  a  jury  trial  before 
the  court  can  determine  that  he  received  the  subpoena.  The 
citizen  summoned  as  a  juror  and  refusing  to  obey  the  writ  when 
brought  into  court  must  be  tried  by  another  jury  to  determine 
whether  he  got  the  summons;  such  a  provision  applies  not  only  to 
injunctions,  but  to  every  order  which  the  court  issues  against 
persons.  A  suit  may  be  tried  in  the  court  of  first  instance  and 
carried  to  the  Court  of  Appeals  and  thence  to  the  Supreme  Court, 
a  judgment  and  decree  entered,  and  an  order  issued,  and  then,  if 
the  decree  involves  the  defendant's  doing  anything  or  not  doing 
anything  and  he  disobeys  it,  the  plaintiff,  who  has  pursued  his 
remedies  in  lawful  courts  for  years,  must,  to  secure  his  rights, 
undergo  the  uncertainties  and  the  delays  of  a  jury  trial  before  he 
can  enjoy  that  which  is  his  right  by  the  decision  of  the  highest 
court  of  the  land." 

Mr.  Taft,  however,  expressed  his  concurrence  in  the  declara- 
tion of  the  Repubhcan  platform  to  the  effect  that  the  "rule  of 
procedure  in  the  federal  courts  with  respect  to  the  issuance  of 
the  writ  of  injunction  should  be  more  accurately  defined  by 
statute."  In  his  message  of  December  7,  1909,  to  Congress,  he 
made  this  specific  recommendation:  "The  ends  of  justice  will 
best  be  met  and  the  chief  cause  of  complaint  against  ill-considered 
injunctions  without  notice  will  be  removed  by  the  enactment  of 
a  statute  forbidding  hereafter  the  issuing  of  any  injunction  or 
restraining  order,  whether  temporary  or  permanent,  by  any 
federal  court  without  previous  notice  and  a  reasonable  oppor- 
tunity to  be  heard  on  behalf  of  the  parties  to  be  enjoined;  unless 
it  shall  appear  to  the  satisfaction  of  the  court  that  the  delay 
necessary  to  give  such  notice  and  hearing  would  result  in  irrep- 
arable injury  to  the  complainant,  and  unless  also  the  court 
shall  from  the  evidence  make  a  written  finding,  which  shall  be 
spread  upon  the  court  minutes,  that  immediate  and  irreparable 
injury  is  likely  to  ensue  to  the  complainant,  and  shall  define 


1  he  Federal  Judiciary  307 

the  injury,  state  why  it  is  irreparable,  and  shall  also  indorse 
on  the  order  issued  the  date  and  hour  of  the  issuance." 

The  Power  of  Passing  upon  the  Constitutionality  of  Statutes 

The  jurisdiction  of  the  federal  courts  extends  not  only  to  cases 
in  law  and  equity  in  the  strict  sense  of  the  word;  it  extends  to 
cases  involving  the  constitutionality  of  state  and  federal  laws. 
It  is  nowhere  expressly  provided  in  the  Constitution  that  the 
federal  courts  shall  have  the  power  to  declare  a  statute  of  Con- 
gress or  of  a  state  legislature  invaUd  on  the  ground  that  it  con- 
flicts with  the  Constitution.  Indeed,  it  is  contended  by  some 
writers  that  it  was  not  the  purpose  of  the  framers  to  confer  such 
a  power,  especially  over  federal  statutes,  upon  the  courts  pf  the 
United  States.  For  example,  the  Honorable  Walter  Clark 
recently  declared  that  the  federal  judiciary  has  clearly  usurped 
authority  in  this  regard.^  Long  ago,  Mr.  Jefferson  held  that  it 
was  the  design  of  the  framers  to  estabhsh  three  coordinate  and 
independent  departments  of  government,  and  that  to  give  the 
judiciary  the  power  of  passing  upon  the  acts  of  the  other  depart- 
ments would  be  to  make  that  branch  of  the  government  supreme 
over  the  other  two  branches.^ 

It  is,  of  course,  not  possible  to  determine  what  was  the  inten- 
tion of  every  member  of  the  convention  at  Philadelphia  which 
framed  the  federal  Constitution;  and  there  is  reason  to  believe 
that  some  of  them,  at  least,  did  not  desire  to  make  entirely  clear 
the  precise  nature  of  the  authority  which  they  had  conferred 
upon  the  federal  judiciary.  Speaking  of  the  language  of  the 
federal  Constitution,  Gouverneur  Morris,  who  was  one  of  the 
leaders  in  the  convention,  wrote:  "Having  rejected  redundant 
and  equivocal  terms,  I  believed  it  as  clear  as  our  language  would 
permit;  excepting,  nevertheless,  a  part  of  what  relates  to  the 
judiciary.  On  that  subject  conflicting  opinions  had  been  main- 
tained with  so  much  professional  astuteness  that  it  became  neces- 
sary to  select  phrases  which  expressing  my  own  notions  would 
not  alarm  others  nor  shock  their  self-love."  ^ 

On  the  other  hand,  however,  some  of  the  members  of  the  con- 
vention, even  before  the  adoption  of  the  Constitution,  expressed 

^  See  the  Independent,  Sept.  26,  1907, 

*  See  Readings,  p.  281. 

»' Sparks,  Life  of  Morris,  Vol.  Ill,  p.  323. 


3o8  American  Government  and  Politics 

their  belief  that  the  federal  judiciary  would  have  the  power  to 
pass  upon  the  constitutionaUty  of  laws.  This  side  of  the  case  was 
very  plainly  put  by  Hamilton  in  The  Federalist:  "The  interpre- 
tation of  the  laws  is  the  proper  and  pecuHar  province  of  the 
courts.  A  constitution  is,  in  fact,  and  must  be,  regarded  by  the 
judges  as  a  fundamental  law.  It  must,  therefore,  belong  to 
them  to  ascertain  its  meaning,  as  well  as  the  meaning  of  any  par- 
ticular act  proceeding  from  the  legislative  body.  If  there 
should  happen  to  be  an  irreconcilable  variance  between  the  two, 
that  which  has  the  superior  obUgation  and  validity  ought,  of 
course,  to  be  preferred;  in  other  words,  the  Constitution  ought 
to  be  preferred  to  the  statute,  the  intention  of  the  people  to  the 
intention  of  their  agents."  At  considerable  length  Hamilton, 
thereupon,  elaborated  and  defended  this  function  of  the  court 
as  prescribed  in  the  Constitution  which  the  people  were  then  being 
called  upon  to  ratify.* 

At  ajl  events,  whatever  may  have  been  the  intention  of  the 
f ramers.  Chief  Justice  Marshall,  in  the  famous  case  of  Marbury  v. 
Madison,  demonstrated  with  logic  that  has  never  been  answered 
that  the  Court  under  the  Constitution  possesses  the  power  of  de- 
claring statutes  void  when  they  conflict  with  fundamental  law.^ 

Congress  has  provided  by  law  the  precise  way  in  which  the 
constitutionality  of  the  statutes  and  acts  of  states  may  be  tested 
in  the  Supreme  Court  of  the  United  States.  A  case  may  be  taken 
to  that  Court  from  the  highest  court  of  a  state  haying  jurisdiction 
over  the  cause,  whenever  the  latter  denies  the  validity  of  a  federal 
treaty  or  statute  or  of  an  authority  exercised  under  the  United 
States.  A  case  may  be  taken  to  the  Supreme  Court  from 
any  such  state  court  whenever,  during  the  trial,  any  statute  of, 
or  authority  exercised  under,  the  state  in  qudfetion  is  claimed  to 
be  repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United 
States,  and  is  nevertheless  upheld  by  the  state  court.  Thus,  a 
case  may  be  taken  into  the  Supreme  Court  jrom  the  state  court, 
whenever  the  latter  decides  against  a  part^  or  person  claiming 
any  title,  right,  privilege,  or  immunity  undlfer  the  federal  Consti- 
tution, statutes,  or  treaties,  or  under  any  Authority  exercised  in 
the  name  of  the  United  States. 

To  make  the  process  of  testing  the  constitutionality  of  a  state 

>  The  Federalist,  No.  LXXVIII. 

2  For  this  important  opinion,  rendered  in  1803,  see  Readings,  p.  274. 


The  Federal  Judiciary  309 

statute  clear,  let  us  examine  a  concrete  case.  The  legislature  of 
New  York  recently  passed  a  law  providing  that  no  employees 
should  be  required  or  permitted  to  work  in  bakeries  more  than 
sixty  hours  a  week,  or  ten  hours  a  day.  Mr.  Lockner,  an  employ- 
ing baker  of  New  York,  claimed  that  this  statute  infringed  the 
rights  which  he  enjoyed  as  a  citizen  under  the  Constitution  of 
the  United  States,  and  resisted  its  enforcement.  The  case  was 
carried  to  the  highest  court  in  the  state  of  New  York,  which 
upheld  the  statute.  The  decision  having  been  against  the  right 
which  he  claimed  under  the  federal  Constitution,  Lockner  there- 
upon carried  his  case  to  the  Supreme  Court  of  the  United  States, 
which  decided  in  his  favor,  declaring  the  law  of  New  York  null 
and  void  as  being  in  conflict  with  certain  provisions  of  the  federal 
Constitution.^ 

It  must  be  noted  that  the  federal  court  will  take  no  notice  of 
the  constitutionality  of  a  statute  except  when  the  latter  is  brought 
to  its  attention  in  the  form  of  a  case  involving  the  rights  of  parties 
to  a  suit.  In  deciding  against  the  validity  of  a  statute,  the 
court  does  not  officially  annul  that  statute,  in  the  way  in  which  a 
governor  or  President  might  veto  it ;  it  merely  refuses  to  enforce 
the  statute  in  the  particular  case  before  it.  Thereupon,  the 
executive  department  of  the  federal  government,  or  of  the  state 
government,  as  the  case  may  be,  simply  drops  the  enforcement 
of  the  law. 

In  no  instance  will  the  federal  judiciary  consider  the  constitu- 
tionality of  any  law  in  the  abstract  or  render  any  opinion  either 
to  Congress  or  to  the  President  on  the  validity  of  a  proposed 
statute.  This  practice  of  the  court  was  adopted  early.  In  1793, 
Washington  sought  the  advice  of  the  Supreme  Court  by  proposing 
to  that  body  twenty-nine  different  questions,  which  the  Court 
respectfully  declined  to  answer  on  the  ground  that  it  could  give 
opinions  only  in  regular  cases  properly  brought  before  it  in  the 
course  of  ordinary  judicial  proceedings.^ 

'  See  Readings,  p.  617. 

^  The  Supreme  Court  has  not  declared  very  many  acts  of  Congress  invalid. 
From  its  foundation  to  1903  it  had  pronounced  void  only  twenty-one  acts  of 
Congress.  In  considering  the  constitutionality  of  federal  statutes  the  Court 
has  laid  down  the  rule  that  it  will  not  declare  a  law  void  except  when  there 
is  no  doubt  in  the  mind  of  the  Court  as  to  its  unconstitutionality.  In  dealing 
with  state  laws,  the  Supreme  Court  declared,  within  the  period  mentioned 
above,  more  than  200  statutes  invalid. 


310  American  Government  and  Politics 

The  power  of  the  Court  to  pass  upon  the  acts  of  state  govern- 
ments was  early  resisted  by  Jefferson  and  the  stanch  defenders  of 
states'  rights.  They  admitted  the  supremacy  of  the  federal  gov- 
ernment within  its  sphere,  but  they  contended  that  to  give  the 
federal  judiciary  the  right  to  determine  the  validity  of  state  laws 
would  enable  the  federal  government  to  define  its  own  sphere  of 
power  and  thus  reduce  the  states  to  mere  administrative  subdivi- 
sions.^ However,  the  leaders  of  the  states'  rights  party  did  not 
offer  any  adequate  plan  for  settling  amicably  disputes  between  the 
federal  and  state  governments  over  their  respective  limits  of 
power  and  for  obviating  the  endless  complications  that  would 
arise  from  conflicting  decisions  in  the  state  courts  if  there  were 
no  final  tribunal  of  appeal  to  give  uniformity  to  them.  The 
logic  by  which  the  federal  judiciary  secures  its  authority  to  pass 
upon  the  validity  of  state  acts  is  as  inexorable  as  the  logic  of 
Marshall's  opinion  in  Marbury  ik  Madison.^ 

Political  Controversies  over  Jiidicial  Authority  ^ 

This  power  of  the  federal  judiciary  to  pass  upon  the  vaUdity 
of  state  and  federal  laws  inevitably  involves  federal  courts,  espe- 
cially the  Supreme  Court,  in  political  matters.  Almost  every 
important  statute  is  a  political  act  by  a  political  body,  usually 
by  a  majority  composed  of  the  members  of  one  political  party; 
and  the  power  to  declare  such  an  act  null  and  void  is  a  poHtical 
power,  although  under  our  system  it  is  exercised  in  the  form  of  a 
judicial  decision.''  In  determining  the  validity  of  statutes,  espe- 
cially federal  statutes,  the  Supreme  Court,  on  several  momentous 
occasions,  has  been  drawn  into  partisan  controversies. 

The  most  famous  of  all  these  controversies  occurred  in  connec- 
tion with  the  celebrated  case  of  Dred  Scott  (1857),  in  which 
Chief  Justice  Taney,  of  southern  origin,  sought  to  accomplish 
the  impossible  feat  of  settling  the  slavery  issue  by  ohiter  dicta. 
The  central  principle  of  Taney's  opinion  was  that  Congress  had 
no  power  to  prevent  slavery  in  the  territories  of  the  United  States 

'  See  the  Kentucky  and  Virginia  Resolutions,  McDonald,  Select  Docu- 
ments of  United  States  History,  1 776-1861,  pp.  149  ff. 

^See  Readings,  pp.  140,  278. 

3  See  Professor  Haines's  temperate  review  of  this  contentious  topic,  The 
Conflict  over  the  Judicial  Powers  (Columbia  University  Studies). 

*  See  Readings,  pp.  283,  288;  for  Mr.  Roosevelt's  view,  Readings,  p.  286. 


The  Federal  Judiciary  311 

—  the  very  question  upon  which  the  new  Republican  party  was 
then  staking  its  hopes  and  gaining  its  strength.  • 

The  response  which  this  momentous  decision  met  was  wide- 
spread and  decided.  The  southern  states  accepted  Chief  Justice 
Taney's  opinion  as  final,  and  a  section  of  the  Democratic  party, 
assembled  in  convention  at  Charleston,  South  CaroHna,  in  April, 
i860,  resolved  that  it  would  "abide  by  the  decisions  of  the 
Supreme  Court  of  the  United  States  on  the  questions  of  constitu- 
tional law." 

In  the  North,  however,  it  met  with  a  storm  of  protest.  The 
legislatures  of  Connecticut,  Maine,  Ohio,  New  Hampshire, 
Vermont,  and  Massachusetts  passed  resolutions  condemning 
the  decision. 

Whereas  [runs  the  Maine  resolutions],  such  extra-judicial  opinion 
subordinates  the  political  power  and  interests  of  the  American  people 
to  the  cupidity  and  ambition  of  a  few  thousand  slaveholders,  who  are 
thereby  enabled  to  carry  the  odious  institution  of  slavery  wherever  the 
national  power  extends,  and  predooms  all  territory  which  the  United 
States  may  hereafter  acquire  by  purchase  or  otherwise  to  a  law  of  slav- 
ery as  irrepealable  as  the  organic  constitution  of  the  country;  and 

Whereas,  such  extra-judicial  opinion  of  a  geographical  majority  of 
the  Supreme  Court  is  conclusive  proof  of  the  determination  of  the 
slaveholding  states  to  subvert  all  the  principles  upon  which  the  Ameri- 
can union  was  formed,  and  degrade  it  into  an  engine  for  the  extension 
and  perpetuation  of  the  barbarous  and  detestable  system  of  chattel 
slavery:   Therefore  — 

Resolved,  that  the  extra-judicial  opinion  of  the  Supreme  Court  in 
the  case  of  Dred  Scott  is  not  binding  in  law  or  conscience  upon  the  gov- 
ernment or  citizens  of  the  United  States  and  that  it  is  of  an  import 
so  alarming  and  dangerous  as  to  demand  the  instant  and  emphatic 
reprobation  of  the  country. 

Resolved,  that  the  Supreme  Court  of  the  United  States  should,  by 
peaceful  and  constitutional  measures,  be  so  reconstituted  as  to  relieve 
it  from  the  domination  of  a  sectional  faction.  .  .  .^ 

Lincoln,  who  afterward  sacrificed  slavery  and  waged  war  to 
save  the  Constitution,  viewed  this  epoch-opening  decision  with ' 
more  calm,  but  he  refused  to  accept  it  as  the  final  word  on  slavery 
in  the  territories.     Two  or  three  months  after  it  was  rendered, 
he  declared  his  belief  in,  and  respect  for,  the  judicial  department 

*  Senate  Mis.  Doc,  No.  14,  35th  Cong.,  ist  Sess.,  1857-58. 


312  American  Government  and  Politics 

of  the  government,  whose  decisions  should  control  the  general 
policy  of  the  country  until  reversed  by  some  lawful  process. 
"We  think  the  Dred  Scott  decision  is  erroneous,"  he  said  to  his 
neighbors  at  Springfield.  "We  know  the  court  that  made  it  has 
often  overruled  its  own  decisions,  and  we  shall  do  what  we  can  to 
have  it  overrule  this.  We  offer  no  resistance  to  it."  ^  But  in  the 
heat  of  the  fray  he  grew  less  temperate  in  his  views.  A  year 
later,  in  a  speech  at  Edwardsville,  he  exclaimed:  "FamiUarize 
yourselves  with  the  chahiTof  bondage  and  you  prepare  your  own 
limbs  to  wear  them.  Accustomed  to  trample  on  the  rights  of 
others,  you  have  lost  the  genius  of  your  own  independence  and 
become  the  fit  subjects  of  the  first  cunning  tyrant  who  rises  among 
you.  And  let  me  tell  you,  that  all  these  things  are  prepared 
for  you  by  the  teachings  of  history,  if  the  elections  shall  promise 
that  the  next  Dred  Scott  decision  and  all  future  decisions  will  be 
quietly  acquiesced  in  by  the  people."  ^ 

Undoubtedly  Lincoln  accepted  without  reserve  the  declaration  of 
the  Republican  platform  on  which  he  was  elected  in  i860:  "That 
the  new  dogma  that  the  Constitution,  of  its  own  force,  carries 
slavery  into  any  or  all  of  the  Territories  of  the  United  States,  is  a 
dangerous  political  heresy,  at  variance  with  the  explicit  provisions 
of  that  instrument  itself,  with  contemporaneous  exposition,  and 
with  legislative  and  judicial  precedent;  is  revolutionary  in  its 
tendency  and  subversive  of  the  peace  and  harmony  of  the 
country." 

In  his  first  inaugural  address,  he  gave  a  temperate  and  reasoned 
view  of  the  place  of  the  Supreme  Court  in  our  system: 

"I  do  not  forget  the  position,  assumed  by  some,  that  constitutional 
questions  are  to  be  decided  by  the  Supreme  Court;  nor  do  I  deny  that 
such  decisions  must  be  binding,  in  any  case,  upon  the  parties  to  a  suit, 
as  to  the  object  of  that  suit,  while  they  are  also  entitled  to  a  very  high 
respect  and  consideration  in  all  parallel  cases  by  all  other  departments 
of  the  government.  And  while  it  is  obviously  possible  that  such  de- 
cision may  be  erroneous  in  any  given  case,  still  the  evil  effect  following 
it,  being  limited  to  that  particular  case,  with  the  chance  that  it  may  be 
overruled  and  never  become  a  precedent  for  other  cases,  can  better  be 
borne  than  could  the  evils  of  a  different  practice.  At  the  same 
time  the  candid  citizen  must  confess  that  if  the  policy  of  the  govern- 

^  Nicolay  and  Hay,  Complete  Works,  Vol.  II,  p.  321. 
2/6/^.,  Vol.  XI,  p.  no. 


The  Federal  Judiciary  313 

ment  upon  vital  questions  affecting  the  whole  people  is  to  be  irrevo- 
cably fixed  by  decisions  of  the  Supreme  Court  the  instant  they  are  made, 
in  ordinary  litigation  between  parties  in  personal  actions,  the  people 
have  ceased  to  be  their  own  rulers,  having  to  that  extent  practically 
resigned  their  government  into  the  hands  of  that  eminent  tribunal. 
Nor  is  there  in  this  view  any  assault  upon  the  court  or  the  judges.  It 
is  a  duty  from  which  they  may  not  shrink  to  decide  cases  properly 
brought  before  them  and  it  is  no  fault  of  theirs  if  others  seek  to  turn 
their  decisions  to  political  purposes."  ^ 

It  was  the  Democratic  party  that  was  to  raise  the  next  serious 
controversy  —  the  party  which,  in  the  moment  of  triumph  over 
the  Dred  Scott  decision,  had  pledged  itself  to  abide  by  the  "de- 
cisions of  the  Supreme  Court  on  all  questions  of  constitutional 
law."  In  1895,  the  Supreme  Court,  by  a  narrow  vote  of  five  to 
four,  declared  unconstitutional  the  federal  income-tax  law  passed 
by  a  Democratic  Congress  the  preceding  year;  and  when  the 
Democratic  national  convenfion  assembled  in  1896,  there  was  a 
great  deal  of  feeling  among  the  radical  elements  against  what  they 
deemed  the  unwarranted  act  of  the  Court  in  reversing  a  previous 
opinion  upholding  a  federal  income-tax  law.^  This  feeling  was 
intensified  by  controversies  over  the  use  of  injunctions  in  labor 
disputes.^ 

Accordingly  Senator  James  K.  Jones,  as  chairman  of  the  com- 
mittee on  resolutions,  brought  in  a  platform  containing  two  sharp 
attacks  on  the  federal  judiciary:  "Until  the  money  question  is 
settled,  we  are  opposed  to  any  agitation  for  further  changes  in  our 
tariff  laws,  except  such  as  are  necessary  to  meet  the  deficit  in  reve- 
nue caused  by  the  adverse  decision  of  the  Supreme  Court  on  the 
income-tax.  But  for  this  decision  by  the  Supreme  Court,  there 
would  be  no  deficit  in  the  revenue  under  the  law  passed  by  a 
Democratic  Congress  in  strict  pursuance  of  the  uniform  decisions 
of  that  court  for  nearly  100  years,  that  Court  having  in  that 
decision  sustained  constitutional  objections  to  its  enactment 
which  had  previously  been  overruled  by  the  ablest  Judges  who 
have  ever  sat  on  that  Bench.  We  declare  that  it  is  the  duty  of 
Congress  to  use  all  the  constitutional  power  which  remains  after 

'Works,  Vol.  VI,  p.  179-180. 

^  For  an  insight  into  the  political  feeling  involved  in  this  controversy,  see 
Mr.  Choate's  celebrated  argument  in  the  Income-Tax  Case,  Readings,  p.  283. 
^  See  above,  p.  305. 


314  American  Government  and  Politics 

that  decision,  or  which  may  come  from  its  reversal  by  the  Court 
as  it  may  hereafter  be  constituted,  so  that  the  burdens  of  taxation 
may  be  equally  and  impartially  laid,  to  the  end  that  wealth  may 
bear  its  due  proportion  of  the  expenses  of  the  government." 
The  platform  furthermore  declared,  with  special  reference  to 
the  recent  Chicago  strike:  "We  denounce  arbitrary  inter- 
ference by  federal  authorities  in  local  affairs  as  a  violation  of  the 
Constitution  of  the  United  States  and  a  crime  against  free  institu- 
tions, and  we  especially  object  to  government  by  injunction  as  a 
new  and  highly  dangerous  form  of  oppression  by  which  federal 
Judges,  in  contempt  of  the  laws  of  the  states  and  rights  of  citizens, 
become  at  once  legislators,  judges,  and  executioners." 

In  vain  did  Senator  Hill  of  New  York  protest  against  these 
clauses,  denouncing  them  as  fooHsh,  ridiculous,  unnecessary, 
revolutionary,  and  unprecedented  in  the  history  of  the  party. 
Mr.  Bryan,  in  his  crown  of  thorns  and  cross  of  gold  appeal,  repHed 
to  Mr.  Hill  with  vehement  directness :  "They  criticise  us  for  our 
criticism  of  the  Supreme  Court  of  the  United  States.  My  friends, 
we  have  made  no  criticism.  We  have  simply  called  attention  to 
what  you  know.  If  you  want  criticism,  read  the  dissenting  opin- 
ions of  the  court.  That  will  give  you  criticisms.  They  say  we 
passed  an  unconstitutional  law.  I  deny  it.  The  income-tax 
was  not  unconstitutional  when  it  was  passed.  It  was  not  un- 
constitutional when  it  went  before  the  Supreme  Court  for  the  first 
time.  It  did  not  become  unconstitutional  until  one  judge  changed 
his  mind;  and  we  cannot  be  expected  to  know  when  a  judge  will 
change  his  mind."  ^ 

Some  obvious  lessons  seem  to  come  from  a  dispassionate  review 
of  the  judicial  conflicts  which  have  occurred  in  our  history.  Criti- 
cism of  the  federal  judiciary  is  not  foreign  to  political  contests ;  no 
party,  when  it  finds  its  fundamental  interests  adversely  affected 
by  judicial  decisions,  seems  to  hesitate  to  express  derogatory 
opinions;  the  wisest  of  our  statesmen  have  agreed  on  the  im- 
possibility of  keeping  out  of  politics  decisions  of  the  Supreme 
Court  which  are  political  in  their  nature;  finally,  in  spite  of 
the  attacks  of  its  critics  and  the  fears  of  its  friends,  the  Supreme 
Court  yet  abides  with  us  as  the  very  strong  tower  defending  the 
American  political  system.^ 

*  Official  Proceedings  of  the  Democratic  National  Convention,  1896,  pp.  190  fif. 
'''  See  Readings,  p.  288,  and  above,  p.  164. 


CHAPTER  XVI 

FOREIGN  AFFAIRS 

The  General  Direction  of  Foreign  A  fairs 

The  Constitution  of  the  United  States  contains  no  express 
provision  for  a  Department  of  Foreign  Afifairs,  and  says  very  little 
about  the  method  by  which  our  foreign  relations  are  to  be  man- 
aged. However,  it  impliedly  makes  the  President  the  official 
spokesman  of  the  nation  in  such  matters  by  giving  him  the  power 
to  appoint  our  representatives  abroad  and  to  negotiate  treaties 
with  the  approval  of  the  Senate.^ 

Not  only  is  the  President  the  oflScial  representative  in  communi- 
cating the  will  of  the  United  States  to  other  countries;  he  is  the 
sole  official  agent  through  whom  the  ministers  of  other  countries 
can  communicate  with  the  United  States.  This  has  been  the  rule 
since  the  foundation  of  our  government.  Mr.  Lee,  as  Attorney- 
General,  pronounced  the  opinion,  in  1797,  that  foreign  ministers 
had  no  authority  to  communicate  their  sentiments  to  the  Ameri- 
can people  by  pubUcations  in  the  newspapers,  for  that  would  be 
considered  contempt  of  this  government. 

While  the  President  of  the  United  States  is  our  official  spokes- 
man in  dealing  with  other  nations,  the  actual  conduct  of  foreign 
affairs  is  vested  in  the  Secretary  of  State.  The  Department  of 
State,  of  which  the  Secretary  is  the  head,  was  organized  in  1789 
by  Congress.^  The  act  provided  that  the  Secretary  of  State 
should  perform  such  duties  as  the  President  should  intrust  to  him, 
relative  to  correspondences,  commissions,  and  instructions  to  the 
public  ministers  and  consuls  sent  out  from  the  United  States,  and 
also  pertaining  to  negotiations  with  the  public  ministers  from 
foreign  states  or  princes.^  In  short,  the  Secretary  is  to  conduct 
all  matters  respecting  foreign  affairs  which  the  President  may 

^  Readings,  p.  183. 

^  It  was  first  called  the  Department  6f  Foreign  Affairs,  but  the  name  was 
shortly  changed. 
^Readings,  p.  291. 


3i6  American  Government  and  Politics 

assign  to  his  Department,  and  furthermore,  he  must  manage  the 
business  as  the  President  may  direct./ 

The  Department  of  State  is  thus  the  legal  organ  of  communica- 
tion between  the  President  and  foreign  countries,  and  is  so  recog- 
nized by  foreign  powers,  for  it  is  to  the  Secretary  of  State  that 
they  address  their  communications  to  our  government.  When 
the  French  minister,  in  1793,  directed  a  letter  to  the  President  of 
the  United  States,  the  Secretary  replied  that  it  was  not  proper 
for  diplomatic  representatives  residing  here  to  institute  corre- 
spondence with  the  chief  executive.^  Of  course,  in  actual  practice 
this  strict  official  routine  is  not  always  observed;  many  questions 
of  foreign  poHcy  are  undoubtedly  considered  by  the  President  in 
his  informal  relations  with  the  ministers  of  other  countries.  In 
final  analysis,  the  practice  depends  on  the  nature  of  the  business 
and  the  personaHty  of  the  President. 

It  is  through  the  Secretary  of  State,  also,  that  the  President 
transmits  letters  and  papers  to  foreign  governments,  and  the 
latter  must  recognize  as  official  only  those  communications  which 
come  through  this  agency.  No  officer  of  the  United  States,  civil 
or  military,  should  address  a  foreign  government,  except  through 
the  Department  of  State,  or  our  diplomatic  representatives  abroad. 
Even  when  the  President  writes  to  a  foreign  ruler  an  autograph 
letter  of  condolence  on  the  death  of  a  relative,  it  is  countersigned 
and  transmitted  by  the  Secretary  of  State. ^ 

The  important  business  of  the  Department  has  the  personal 
attention  of  the  Secretary.  International  disputes,  questions  of 
general  poUcy,  or  any  matters  of  great  weight,  are  considered  by 
him,  and  he  keeps  in  close  touch  with  the  President,  discussing 
with  him,  and  sometimes  with  the  entire  Cabinet,  matters  of  spe- 
cial significance. 

'  Readings,  p.  200. 

^The  communications  thus  made  to  the  Department  of  State  are  trans- 
mitted to  the  President  whenever  they  are  deemed  of  suflScient  importance, 
or  there  are  special  reasons  for  such  an  action. 

^The  President  himself  may  draft  a  despatch  to  a  foreign  country,  with 
or  without  the  advice  of  his  Cabinet,  but  the  despatch  is  signed  by  the 
Secretary,  so  that  all  communications  appear  to  be  through  him  ofBcially. 
Congratulatory  letters  which  the  President  signs  are  sometimes  even  drafted 
by  a  clerk  in  the  Department  of  State. 


Foreign  Affairs  317 


Official  Representatives  of  the  United  States  in  Foreign  Countries 

The  representatives  of  the  United  States  charged  with  conduct- 
ing our  relations  with  other  countries  fall  into  two  general  groups: 
diplomatic  and  consular. 

^  I.  The  first  of  these  groups  is  divided  into  four  classes:  (i)  am- 
bassadors extraordinary  and  plenipotentiary;  (2)  envoys  extraor- 
dinary and  ministers  plenipotentiary  and  special  commissioners ; 
(3)  ministers  resident;   and  (4)  charges  d'affaires. 

This  classification  originated  in  the  ceremonials  of  European 
courts  which  gave  precedence  in  processions  and  social  affairs  to 
diplomatic  representatives  according  to  their  rank.  In  the  inter- 
national congresses  of  the  seventeenth  and  eighteenth  centuries, 
there  was  constant  wrangling  over  the  positions  to  be  assigned  to 
representatives  of  various  countries;  and  it  was  finally  decided 
by  the  practice  of  the  nineteenth  century  that  nations  were  equal 
when  their  representatives  were  assembled  in  general  congress 
for  negotiations ;  but  in  each  country  the  old  custom  of  assigning 
to  diplomatic  agents  social  and  official  positions  in  accordance 
with  their  rank  was  continued. 

For  over  a  century  the  United  States  did  not  send  ambassadors 
extraordinary  and  plenipotentiary,  but  was  represented  abroad 
only  by  agents  falling  within  the  second,  third,  and  fourth  classes. 
It  thus  came  about  sometimes  that  a  minister  of  the  United  States 
was  compelled,  on  public  occasions,  at  receptions,  and  in  inter- 
views with  foreign  officers,  to  step  aside  in  favor  of  the  representa- 
tive of  some  small  nation,  who  happened  to  bear  the  title  of  am- 
bassador. Though  all  European  courts  did  not  follow  this 
rigid  system,  American  ministers  were  often  mortified  by  treat- 
ment which  was  deemed  humiliating  to  the  spokesmen  of  so  great 
a  nation.  Accordingly,  in  1893,  Congress  provided  that  our  rep- 
resentative to  any  foreign  country  should  have  the  same  rank 
as  the  representative  of  that  country  to  the  United  States.^  There- 
fore, whenever  a  nation  sends  an  ambassador  to  us,  we  return  the 
honor.  This  means,  of  course,  that  more  money  must  be  spent  in 
maintaining  the  higher  rank,  but  Congress  has  not  made  a  propor- 
tionate increase  in  salaries.^ 

*  Sometimes,  however,  we  take  the  initiative  in  raising  the  rank  by  mak- 
ing overtures  to  other  countries,  as  in  the  case  of  Turkey. 
^  On  this  point,  Readings ,  p.  295. 


31 8  American  Government  and  Politics 

All  diplomatic  representatives  of  the  United  States  are  nom 
nated  by  the  President  and  appointed  by  and  with  the  advic 
and  consent  of  the  Senate.  In  spite  of  the  special  knowledge  an 
experience  which  are  required  of  those  who  enter  the  diplomat] 
service,  our  representatives  have  been  too  often  selected  withou 
regard  to  their  qualifications.  Diplomatic  appointments  ar 
made  too  frequently  as  rewards  for  political  service.  As  Seen 
tary  Hay  once  remarked,  ''A  quiet  legation  is  a  stuffed  mattres 
which  the  political  acrobat  wants  always  to  see  ready  under  hin 
in  case  of  a  slip."  The  term  of  office  is  uncertain  and  liable  t 
be  brief,  for,  whenever  a  change  of  party  occurs  at  Washingtoi 
there  is  a  general  change  in  our  representation  abroad.  Thei 
is  no  arrangement  for  prolonged  tenure  of  office,  beginning  wit 
the  lower  grades  of  the  diplomatic  service  and  ending  with  a  pos 
tion  at  the  foremost  court  of  Europe.^ 

In  nominating  ministers,  the  President  should  always  ascertaii 
in  advance  whether  any  particular  appointee  is  personally  aij 
ceptable  to  the  government  to  which  it  is  proposed  to  send  him 
After  his  appointment,  a  minister  is  given  a  formal  letter  of  cr 
dence,  and  on  his  arrival  at  his  foreign  post  he  must  at  once  ent» 
into  communication  with  the  representative  of  that  government : 
charge  of  foreign  affairs.     It  is  customary  for  the  minister's  pred 
cessor  to  remain  until  his  arrival  and  arrange  for  his  inductic 
into  office.     It  is  also  customary  for  the  minister  to  be  receive 
in  audience  by  the  head  of  the  government  to  which  he  is  a 
credited;  and  the  ceremonials  at  that  audience  are  conducted 
accordance  with  the  custom  of  the  country  in  which  it  is  hel 

The  necessity  of  mastering  the  somewhat  intricate  ceremoni 
of  foreign  courts  has  been  at  times  a  source  of  trepidation 
American  representatives.     Mr.  John  W.  Foster  relates  an  amu 
ing  incident  of  his  reception  at  the  court  of  Russia  in  the  great  h; 

^  President  Roosevelt,  however,  in  1905,  issued  an  order  that  the  imp 
tant  office  of  secretary  to  embassies  or  legations  should  be  filled  by  trans 
or  promotion  from  some  branch  of  our  foreign  service,  or  by  the  appointmc 
of  persons  whose  qualifications  had  been  determined  by  an  examinati( 
Moreover,  within  recent  years,  there  has  been  a  tendency  toward  the  elir 
nation  of  the  grosser  forms  of  politics  from  diplomatic  appointments.  T 
service  was  still  further  advanced  by  an  executive  order  of  November 
1909,  making  the  examinations  more  difficult. 

^  For  the  illustrative  case  of  Mr.  Keiley,  see  Foster,  Practice  of  Diploma] 
p.  40. 


Foreign  Affairs  319 

of  the  Anitchkoff  Palace.  He  was  required  after  the  interview 
to  retire  backward,  down  the  long  hall,  with  his  face  fixed  upon 
the  Grand  Ducal  party  and  to  make  his  farewell  bow  on  reaching 
the  door.  He  states  that  he  succeeded  in  getting  to  the  entrance 
without  knocking  over  any  furniture,  but  that  his  hand  fell 
unfortunately  upon  one  of  the  two  knobs  which  did  not  open  the 
door  but  merely  turned  round  and  round,  much  to  his  vexation  and 
embarrassment.  In  the  midst  of  his  perplexity,  the  Tsaravitch, 
seeing  his  predicament,  cried  out  in  excellent  Enghsh:  "Mr. 
Foster,  take  the  other  knob!"  He  at  once  heeded  this  advice 
and  bowed  himself  out  of  the  imperial  presence.* 

A  diplomatic  mission  abroad  may  be  closed  by  one  of  two 
methods.  A  minister  may  exercise  his  constitutional  right  of 
resigning  at  pleasure,  or  he  may  be  recalled  by  the  President, 
perhaps  at  the  request  of  the  foreign  government.  In  an  extreme 
case,  he  might  be  summarily  dismissed  by  the  government  to 
which  he  is  accredited. 

A  diplomatic  representative  enjoys  abroad,  under  the  rules  of 
international  law,  several  special  privileges  and  immunities.^ 
Any  injury  or  affront  to  him  is  an  offence  against  the  country 
which  he  represents  and  the  principle  of  international  comity. 
The  house  in  which  he  resides  is  under  the  particular  protection  of 
the  law ;  it  may  not  be  entered  or  disturbed  by  any  one  against  his 
will.  A  minister  is  entitled  to  special  protection  while  traveUing 
on  land  or  sea.  He  and  his  official  family,  including  even  his 
domestic  servants,  are  exempt  from  arrest,  —  in  short,  from  all 
criminal  and  civil  processes  at  all  times. 

The  functions  of  our  diplomatic  agents  may  be  given  in  the 
language  of  a  report  made  by  the  Department  of  State  some 
years  ago.^  According  to  this  report  the  duties  of  ministers  are 
not  confined  to  the  transmission  of  instructions  from  their  govern- 
ment. Official  communications,  indeed,  constitute  a  relatively 
unimportant  part  of  the  minister's  business.  He  should  cultivate 
friendly  personal  relations  with  the  officers  of  the  government  to 
which  he  is  accredited,  so  that  on  proper  occasions  he  may  have 
easy  access  to  them  and,  having  thus  gained  their  confidence  in 
advance,  may  converse  freely  with,  them;  it  is,  therefore,  neces- 

^  Foster,  The  Practice  of  Diplomacy,  p.  60. 

^  Moore,  International  Law  Digest,  Vol.  IV,  p.  622. 

^Executive  Documents,  No.  146,  p.  17;   48th  Cong.,  ist  Sess. 


320  American  Government  and  Politics 


1 


sary  for  the  ambassador  to  adapt  himself  to  the  mode  of  life 
of  the  official  class  of  the  country  in  which  he  is  stationed.  To  do 
this,  he  must  study  the  sensibilities,  prejudices,  form  of  govern- 
ment, and  spirit  of  public  Hfe  there.  When  issues  arise  between 
his  country  and  the  foreign  government,  he  must  endeavor  to 
adjust  matters  as  informally  and  genially  as  possible,  without 
resorting  to  any  official  representations  or  discussions.  Many 
examples  might  be  cited  of  American  citizens  being  spared  serious 
inconvenience,  imprisonment,  or  loss  of  property  by  the  informal 
and  confidential  interposition  of  our  ministers  with  official  friends 
in  foreign  governments,  whereas  formal  complaints  made  openly 
by  the  citizens  might  easily  have  led  to  tedious  discussions 
and  endless  delays,  to  say  nothing  of  the  Uability  of  arousing  un- 
friendly feeling  by  public  controversies.  Thus,  the  real  successes 
of  diplomacy  are  usually  not  heralded  far  and  wide,  and  are  un- 
known save  to  the  few  immediately  involved  in  them.  As  the 
report  concludes,  a  diplomat  does  his  duty  by  discharging  in- 
numerable daily  obligations  that  attract  no  attention;  and  he 
may  be  regarded  as  successful  just  in  proportion  to  the  constant 
tranquillity  which  he  is  able  to  maintain  in  the  relations  of  his 
government  with  the  foreign  country. 

The  Honorable  Andrew  D.  White  in  his  Autobiography  ^  gives 
an  interesting  account  of  his  fife  as  representative  at  Berlin  and 
incidentally  affords  insight  into  the  character  of  the  duties  which 
fall  upon  a  minister  abroad.  Almost  every  conceivable  case  in- 
volving the  relation  of  Americans  to  the  German  government  seems 
to  have  come  within  the  range  of  Mr.  White's  experience.  Hardly 
a  day  passed  without  the  necessity  of  engaging  in  some  kind  of  a 
skirmish  with  the  German  minister  of  foreign  affairs  over  the 
rights  of  the  German- Americans  in  the  Fatherland.  One  Ameri- 
can, moved  by  patriotic  impulses,  denounced,  in  a  crowded  railway 
carriage,  Germany,  the  German  people,  and  the  German  Imperial 
Government;  and,  after  passing  the  night  in  the  guard-house, 
sought  relief  at  the  hands  of  our  minister.  Another  American, 
who  thought  that  he  ought  to  get  married  in  BerHn  as  easily  as  in 
New  York  City,  appealed  to  him  for  aid  in  getting  through  the 
compUcations  of  the  German  law  of  matrimony.  Then  there 
were  vexatious  questions  with  regard  to  the  tariff.    The  commer- 

1  Vol.  I,  pp.  534-547- 


Foreign  Affairs  321 

cial  interests  in  Germany,  anxious  to  protect  themselves  against 
competition,  had  secured  very  naturally  some  rather  severe 
discriminations  against  American  products,  and  the  American 
manufacturers  affected  by  these  discriminations  laid  upon  the 
ambassador  the  heavy  duty  of  conducting  negotiations  with  the 
German  foreign  office  and  members  of  the  imperial  cabinet,  with  a 
view  to  securing  modifications  in  the  German  tariff.  Americans 
in  distress,  real  or  imaginary,  were  always  appealing  to  him. 
American  statesmen,  out  of  natural  curiosity  and  with  a  view  to 
the  social  advantages  to  be  derived  for  themselves  and  their 
famiUes,  were  constantly  seeking  introductions  to  high  officials. 
Scholars  desiring  access  to  documents  and  special  information  of 
many  kinds  expected  the  minister  to  pronounce  the  "open 
sesame";  and  American  manufacturers  and  merchants  looked 
to  him  to  discover  for  them  easy  methods  of  approach  to  German 
commercial  men.  The  minister's  duties  went  even  farther. 
Any  American  who  wanted  his  genealogy  looked  up  in  Germany 
felt  free  to  call  upon  him  for  assistance;  and  that  large  class  of 
persons  who  were  constantly  expecting  to  inherit  fortunes  abroad 
likewise  relied  upon  their  minister  to  keep  track  of  their  interests. 

Long  practice  *  seems  to  have  established  certain  rules  for  the 
general  guidance  of  diplomatists.^  A  public  minister  ought  not* 
to  act  as  the  agent  for  the  collection  of  private  claims;  and  he 
is  undern^obhgation  to  prosecute  investigations. for,,^vate 
persons.  It  is  also  the  duty  of  diplomatic  representatives  of  the 
United  States  scrupulously  to  abstain  from  interfering  in  the 
political  controversies  of  the  countries  to  which  they  are  ac- 
credited. It  is  not  deemed  advisable  for  ambassadors  to  make 
pubhc  addresses,  except  on  festal  occasions,  and  even  then  they 
should  be  extremely  cautious  in  referring  to  poHtics  in  any  form. 
This  principle  was  asserted  by  the  House  of  Representatives, 
in  1896,  in  a  resolution  censuring  Mr.  Bayard,  then  ambassador 
to  Great  Britain,  for  a  speech  made  in  Edinburgh  in  which  he  crit- 
icised the  protective  tariff  in  the  United  States  rather  severely. 

In  addition  to  the  regular  diplomatic  agents,  the  United  States 
has  often  employed  special  missions  for  the  purpose  of  conducting 
negotiations  with  foreign'  countries.^   Such  missions  are  commonly 

*  See  the  Rules  of  the  Department  of  3tate. 
2  Moore,  International  Law  Digest,  Vol.  IV,  pp.  565  ff. 
'  Foster,  The  Practice  of  Diplomacy,  chap.  x. 
Y 


322  American  Government  and  Politics 


used  to  manage  peace  negotiations  —  the  most  recent  exampL 
being  the  commission  sent  to  Paris  in  1898  to  conclude  with  the 
representatives  of  Spain  the  details  of  the  treaty  which  closed 
the  Spanish-American  War.  Another  noteworthy  mission  was 
that  intrusted  by  President  Fillmore  to  Commodore  Perry, 
in  1852,  authorizing  him,  as  a  special  plenipotentiary,  to  open 
relations  with  the  Emperor  of  Japan.  The  results  of  this  mission 
are  too  well  known  to  need  recounting  here.^ 

II.  The  United  States  is  also  represented  abroad  by  consuls,^ 
who  are  primarily  our  commercial  agents  and  perform  a  large 
number  of  routine  duties.  Consuls  of  all  grades,^  like  ambassa- 
dors, are  appointed  by  the  President  with  the  approval  of  the 
Senate. 

Our  consuls  are  divided  into  three  groups:  (i)  consuls-general- 
at-large  —  travelling  representatives  who  inspect  the  consulates 
of  the  United  States  throughout  the  world;  (2)  consuls-general, 
who  supervise  the  entire  consular  systems  of  particular  countries ;  * 
and  (3)  consuls,  ^  stationed  at  innumerable  points  in  every  civiUzed 
country  of  the  globe.  To  these  three  groups  may  be  added 
vice-consuls  and  consular  agents  who  act  as  representatives  within 
any  particular  consular  district  under  the  direction  of  the  regular 
consul. 

Inasmuch  as  the  consular  service  is  of  special  importance  to  the 
commercial  and  industrial  interests  of  the  country,  there  has  been 
growing  up  within  recent  years  a  demand  for  higher  standards 

*  Every  American  diplomatic  representative  abroad  has  a  staff  of  assist- 
ants, varying  in  number  according  to  the  quantity  of  business  of  the  country 
to  which  he  is  accredited.  The  first  secretary  of  an  embassy  or  legation 
should  be  a  man  of  long  diplomatic  experience,  well  acquainted  with  the 
officials  and  the  customs  of  the  country  in  which  he  resides.  Owing  to  his 
special  qualifications,  he  assumes,  as  charge  d'affaires  ad  interim,  all  of  the 
duties  of  a  minister  in  case  of  the  absence  of  that  official.  He  enjoys  also 
the  privileges  and  immunities  of  a  diplomatic  representative  in  international 
law.  There  is  a  tendency  to  attach  more  importance  to  the  office  of  secretary 
to  legations,  and  to  make  that  branch  of  the  public  service  more  attractive. 
There  are  usually  two  or  three  additional  secretaries  and  a  number  of  clerks 
and  interpreters. 

2  Moore,  International  Law  Digest,  Vol.  V,  chap.  xvi. 
'  Except  vice-consuls  and  consular  agents  whose  appointments  are  not  rati- 
fied by  the  Senate,  United  States  v.  Eaton,  169  U.  S.  R.,  331. 

*  In  some  countries  more  than  one  consul-general  is  appointed. 

^  Consuls  in  exterritorial  countries  have  a  peculiar  position.    Below,  p.  325. 


)le^B 


Foreign  Affairs  323 

of  efficiency  in  that  branch  of  public  service.  As  long  as  the 
consular  offices  were  regarded  as  the  legitimate  spoils  of  the  poHti- 
cian,  little  attention  was  paid  to  real  qualifications,  and  the  service 
was  constantly  disturbed  by  rapid  changes  in  the  personnel. 
It  is  clear  that  long  experience  is  a  most  important  qualification 
for  a  consul.  He  should  be  a  thorough  master  of  the  language 
of  the  country  in  which  he  is  stationed,  and  a  careful  student  of 
the  markets,  the  conditions  of  the  export  and  import  trade,  and 
the  opportunities  for  commerce  in  that  country.  Finally,  inas- 
much as  his  varied  and  complicated  ditties  must  be  conducted 
under  an  elaborate  code  of  laws,  he  needs  some  legal  training. 
It  is  evident,  therefore,  that  service  to  a  political  organization  in 
some  inland  town  or  congressional  district  does  not  qualify  a 
man  to  act  as  the  consular  representative  of  the  United  States. 

On  his  appointment  as  Secretary  of  State,  Mr.  Root  took  im- 
mediate steps  toward  the  reorganization  of  the  American  consular 
system,^  and,  largely  on  his  initiative.  Congress  passed,  in  1906, 
a  law  entitled  ''An  Act  to  provide  for  the  Reorganization  of  the 
Consular  Service  of  the  United  States."  This  law  classified  and 
graded  the  consuls  in  such  a  way  as  to  enable  the  President  to 
extend  the  merit  system  to  that  branch  of  the  public  service. 
Under  this  Act,  the  President  adopted  a  method  by  which  impor- 
tant vacancies  are  to  be  filled  either  by  promotions  of  men  whose 
abihty  has  been  tested  in  the  service,  or  by  the  appointment  of 
candidates  who  have  passed  oral  and  written  examinations  show- 
ing their  fitness  for  the  work.^ 

The  specific  powers  and  duties  of  consular  officers '  are  found  in 
the  "Consular  Regulations  of  the  United  States."  First  and 
foremost,  the  consular  officer  is  a  commercial  representative.  He 
must  certify  the  invoices  of  goods  intended  for  exportation  to  the 
United  States ;  and  to  do  this  correctly  he  must  have  a  wide  knowl- 
edge of  the  character  and  value  of  the  goods  produced  for  export 
within  his  particular  district.  He  must,  furthermore,  be  a  master 
of  every  detail  of  our  tariff  system  in  order  that  he  may  cooperate 
with  our  customs  officials  at  home  in  securing  a  correct  valuation 


^Reinsch,  Readings,  p.  658. 
-Ibid.,  pp.  671  and  674. 

3  Foster,  The  Practice  of  Diplomacy,  pp.  222  flf.;  Moore,  International  Law 
Digest,  Vol.  V,  pp.  93  ff. 


324  American  Government  and  Politics 

of  all  goods  and  in  preventing  smuggling  and  violations  of  the 
customs  law. 

An  equally  important  commercial  responsibility  placed  upon 
the  consul  is  that  of  aiding  in  the  extension  and  increase  of  Ameri- 
can trade  abroad.  It  is  his  duty  ''to  make  a  deep  and  special 
study  of  the  industrial  and  mercantile  conditions  existing  in  his 
district.  He  must  know  what  the  country  needs  or  would  take 
in  raw  materials,  in  commodities,  and  in  manufactured  articles. 
He  should  learn  how  these  needs  are  being  supplied  with  particu- 
lar attention  to  those  of  them  which  the  American  producer  — 
farmer,  miner,  manufacturer,  or  merchant — might  supply. 
He  should  investigate  and  report  as  to  whether  the  American 
import  could  not,  by  a  change  in  form  or  by  variation  in  manufac- 
ture, by  a  different  method  in  packing,  by  a  more  convenient 
accommodation  in  payment,  or  in  any  other  way  be  brought  into 
greater  demand,  and  American  trade  be  thus  increased.  .  .  . 
Also  in  some  countries  government  contracts  are  an  important 
item  in  the  competition  for  import  orders.  Therefore,  it  may 
be  wise  for  us,  as  some  European  governments  have  done,  to 
appoint  commercial  attaches  to  some  of  our  legations  and  em- 
bassies." ^ 

In  connection  with  our  shipping  and  seamen  the  consul  has 
many  duties.  When  an  American  vessel  touches  at  a  foreign 
port,  the  master  must  deposit  his  register  with  the  consul  of  the 
United  States,  and  before  clearing  he  must  secure  the  return  of  his 
papers.  The  consul  has  some  jurisdiction  over  disputes  between 
the  masters,  officers,  and  men  of  American  vessels;  he  may 
discharge  seamen  from  their  contracts ;  it  is  his  duty  to  hear  the 
complaints  of  American  seamen  in  foreign  ports  and  also  to  give 
relief  to  the  seamen  of  an  American  vessel  when  in  distress.  The 
consul  is  expected  to  make  innumerable  reports  to  the  State 
Department  in  Washington,  which  are  edited  and  transmitted  to 
the  Department  of  Commerce  and  Labor  for  publication. 

The  functions  of  the  consul  are  not  yet  exhausted.  He  is  called 
upon  to  intervene  with  local  authorities  in  behalf  of  his  country- 
men whenever  they  get  into  trouble  in  his  district.  He  adminis- 
ters oaths,  takes  depositions,  authenticates  public  documents, 
acknowledges  deeds  and  other  instruments,  acts  as  a  witness  to 

*  Reinsch,  Readings,  p.  652. 


Foreign  Affairs  325 

narriages  which  occur  in  the  consulate,  administers,  under  certain 
ircumstances,  the  estates  of  citizens  of  the  United  States  dying 
,broad.  Consuls  whose  salaries  are  below  $ioooayearmayunder- 
ake  the  transaction  of  private  business  not  conflicting  with  other 
onsular  duties,  though  in  such  cases  they  act  as  private  persons 
,nd  not  as  official  representatives.  In  some  states,  notably 
vhina,  Siam,  Persia,  Korea,  and  Turkey,  our  consuls  exercise,  to 
,  greater  or  less  extent,  jurisdiction  over  American  citizens 
/ithin  their  respective  districts,  y     j      j     J     \     \\)     }      J 

The  Treaty-making  Power 

The  Constitution  of  the  United  States  provides  that  the 
^resident,  by  and  with  the  advice  and  consent  of  the  Senate, 
wo-thirds  of  the  Senators  present  concurring,  may  make 
reaties;  and  that  treaties  so  made  under  the  authority  of  the 
Jnited  States  shall  stand  with  the  Constitution  and  the  acts  of 
Congress  as  the  supreme  law  of  the  land.  No  express  limita- 
ions  whatever  are  placed  on  this  treaty-making  power;  and 
he  question  has  been  raised  whether  the  federal  government 
[lay  make  treaties  with  foreign  countries  relating  to  other 
ban  purely  federal  matters. 

Jefferson  laid  down  four  rules  with  regard  to  the  treaty-making 
lower.  He  said:  (i)  it  must  concern  foreign  nations;  (2)  it  was 
atended  to  comprehend  only  those  subjects  which  are  usually 
egulated  by  treaty  and  cannot  be  otherwise  regulated;  (3)  the 
ights  reserved  to  the  states  must  be  excluded  from  the  scope 
I  the  treaty-making  power,  for  the  President  and  Senate  ought 
lot  to  be  allowed  to  do,  by  way  of  treaty,  what  the  whole  federal 
;overnment  was  forbidden  to  do  in  any  way;  and  finally  (4)  the 
'resident  and  Senate  should  not  negotiate  treaties  on  subjects  of 
sgislation  in  which  participation  is  given  by  the  Constitution  to 
he  House  of  Representatives.  The  appHcation  of  the  principles 
lid  down  by  Jefferson  would,  of  course,  greatly  restrict  the 

*  This  custom  of  giving  consuls  jurisdiction  over  American  citizens  origi- 
ated  in  the  great  difference?  which  existed  between  the  law  and  procedure 
f  many  non-European  countries  and  that  of  the  United  States  —  a  differ- 
nce  which  made  the  citizens  of  the  United  States  unwiUing  to  submit  to  the 
Lirisdiction  of  native  tribunals.  Such  jurisdiction  was  once  possessed  by 
ur  consuls  in  Japan,  but  the  law  of  that  country  took  on  more  and  more  the 
orm  of  the  Western  law,  and  our  consular  jurisdiction  was  abolished  in  1899. 


326  American  Government  and  Politics 

treaty-making  power  of  the  federal  government.  Nevertheless 
it  was  once  said  by  the  Supreme  Court  that  whenever  an  act  of 
Congress  would  be  unconstitutional  as  invading  the  reserved 
rights  of  the  states,  a  treaty  to  the  same  effect  would  be  uncon- 
stitutional.^ 

However,  in  practice  these  limitations  are  not  recognized. 
Indeed,  the  courts  have  held  vahd  a  number  of  treaties  relative 
to  matters  which  are  ordinarily  regulated  by  state  governments. 
For  example,  a  Russian  recently  died  in  Cambridge,  Massachu- 
setts, leaving  some  personal  property,  and  according  to  the  law 
of  that  commonwealth  the  local  officer  undertook  the  settlement 
of  the  estate  of  the  deceased.  The  Russian  consul  for  the  dis- 
trict, however,  showed  that,  by  a  treaty  between  his  country  and 
the  United  States,  he  had  the  right  to  administer  the  estates  of 
his  deceased  countrymen  there,  and  his  claim  was  upheld.^ 

It  is  also  maintained  on  good  authority  that  the  federal  govern- 
ment can  intervene  in  the  administration  of  the  criminal  law  of  a 
state,  where  the  treaty  rights  of  foreigners  residing  in  the  United 
States  are  involved.  President  Harrison  in  a  message  in  1891 
said:  "  It  would,  I  beHeve,  be  entirely  competent  for  Congress 
to  make  offences  against  the  treaty  rights  of  foreigners  domiciled 
in  the  United  States  cognizable  in  the  federal  courts.  This  has 
not,  however,  been  done,  and  the  federal  officers  and  courts  have 
no  power  in  such  cases  to  intervene,  either  for  the  protection  of  a 
foreign  citizen  or  for  the  punishment  of  his  slayers."  ^  Congress, 
notwithstanding  the  suggestion,  has  not  yet  seen  fit  to  confer 
such  jurisdiction  on  the  courts. 

This  right  of  the  federal  government  to  make  treaties  pertain- 
ing to  matters  which  are  clearly  within  the  sphere  of  state  legis- 
lation raises  many  very  practical  questions,  and  will  require  far 
more  serious  consideration  as  our  relations  with  other  peoples 
increase.  An  excellent  example  of  the  importance  of  this  prob- 
lem is  afforded  by  the  recent  dispute  over  the  exclusion  of 
Japanese  children  from  the  regular  pubhc  schools  of  San  Fran- 
cisco, which,  it  was  claimed  by  Japan,  was  a  violation  of  treaty 
rights.  Now,  there  is  no  doubt  that  the  federal  government  or- 
dinarily has  no  power  whatever  to  interfere  with  the  public 

^  Prevost  V.  Greneaux,  19  Howard,  7. 

'Moore,  International  Law  Digest,  Vol.  V,  p.   125. 

'  Messages  and  Papers  of  the  Presidents,  Vol.  IX,  p.  183. 


Foreign  Affairs  327 

schools  of  a  state,  for  a  state  may  abolish  schools  if  it  pleases, 
or  prescribe  such  conditions  as  it  sees  fit.  It  was  strongly  urged 
by  Democratic  members  of  Congress  that  if  the  President  and 
Senate  could  make  treaties  disposing  of  matters  so  distinctly 
reserved  to  the  states,  the  treaty-making  power  was  above  and 
beyond  the  Constitution,  and  the  rights  of  the  states  were  placed 
at  the  disposal  of  the  executive  of  the  nation  and  the  senatorial 
council.  It  so  happened  that  it  was  not  necessary  to  come  to  a 
final  determination  on  the  principle  involved  in  the  San  Francisco 
school  question,  but  it  is  clearly  evident  that  the  issue  raised  in 
that  controversy  was  of  no  mere  temporary  significance. 

Furthermore,  in  actual  practice,  matters  are  regulated  by 
treaty  which  may  at  the  same  time  be  the  subjects  of  legislation 
by  Congress.  For  example.  Congress  has  power  to  regulate  com- 
merce with  foreign  nations,  but  the  President  and  Senate,  by  vir- 
tue of  their  treaty-making  power,  may  make  stipulations  with 
foreign  countries  regulating  such  commerce.^ 

The  Negotiation  of  Treaties 

In  the  negotiation  of  treaties,  the  President  may  employ  such 
agencies  as  he  chooses.  He  may  commit  the  undertaking  to  the 
Secretary  of  State;  he  may  employ  an  ambassador,  a  minister,  a 
charge  d^af  aires,  or,  if  he  likes,  he  may  select  some  private  person 
who,  in  his  opinion,  is  peculiarly  fitted  for  the  work  by  his  skill, 
or  acquaintance  with  the  language  and  customs  of  the  country 
with  which  the  negotiations  are  carried  on.  In  case  a  special 
agent  is  appointed,  confirmation  by  the  Senate  is  not  necessary. 

The  extent  to  which  the  Senate  under  its  right  to  advise  and 
consent  may  participate  in  the  actual  negotiation  of  treaties  is 
by  no  means  settled.  On  the  one  hand,  it  has  been  maintained 
that  it  is  the  constitutional  right  of  the  President  to  negotiate 
treaties  without  any  interference  from  the  Senate,  and  that  he 
need  only  submit  the  final  document  to  that  body  for  action.^ 
On  the  other  hand,  it  is  claimed  by  eminent  authorities  that  the 
Senate  may  share  in  treaty-making  at  any  stage,  and  may  even 
advise  the  President  to  undertake  the  negotiation  of  any  partic- 
ular treaty. 

Certainly  the  framers  of  the  Constitution  believed  that  the 

'  Below,  p.  392.  ^  On  this  matter,  see  Readings,  p.  297, 


328  American  Government  and  Politics- 

President  should  consult  the  Senate  in  the  negotiation  of  treaties; 
and  President  Washington*  stated  to  a  committee  of  that  body 
that  in  all  such  affairs  even  oral  communications  were  necessary. 
He  argued  that  in  negotiations  there  are  many  matters  that  re- 
quire not  only  consideration,  but  sometimes  an  extended  dis- 
cussion which  would  make  written  communications  tedious  and 
unsatisfactory.  Accordingly,  he  visited  the  Senate  in  1789  to 
lay  before  it  papers  relating  to  the  negotiation  of  a  treaty  with  an 
Indian  tribe.  He  made  a  brief  statement  and  then  put  several 
questions  to  the  Senate^  asking  its  advice  in  the  form  of  affirma- 
tion or  negation.  The  Senate  postponed  action  on  these  ques- 
tions, but  finally  prepared  answers  to  them. 

Although  Washington  later  ceased  to  make  personal  visits  to 
the  Senate,  he  constantly  consulted  with  that  body  on  the  nego- 
tiation of  treaties,  by  means  of  written  communications.  For 
example,  in  1790,  he  sent  to  the  Senate  three  questions  relative 
to  the  negotiation  and  terms  of  a  certain  treaty.  However,  he 
did  not  always  follow  this  practice,^  and  his  successors  have  seen 
fit  to  do  so  only  under  exceptional  circumstances. 

For  instance,  President  Polk,  in  1846,  laid  before  the  Senate  a 
draft  of  a  treaty  presented  to  the  Secretary  of  State  by  the  Brit- 
ish envoy  proposing  an  adjustment  of  the  Oregon  question;  and 
asked  the  advice  of  the  Senators  as  to  what  action,  in  their 
judgment,  was  proper  to  take  in  reference  to  the  treaty.  There 
were,  of  course,  peculiar  poUtical  reasons  ^  which  actuated  the 
President  on  this  occasion,  but  he  justified  his  conduct  by  a 
reference  to  the  practice  of  President  Washington.  This  example 
was  likewise  followed  occasionally  by  President  Lincoln  and 
President  Grant;  and  in  1884  President  Arthur  submitted  to  the 
Senate  a  proposal  from  the  King  of  the  Hawaiian  Islands,  relat- 
ing to  a  reciprocity  treaty,  before  taking  the  first  steps  in  its 
negotiation. 

In  more  recent  times  it  has  been  the  custom  of  the  Secretary  of 
State  to  consult  influential  Senators  ^  with  reference  not  only  to 
treaties  already  negotiated,  but  also  as  to  the  advisability-  of 
opening  conferences  with  the  representatives  of  foreign  powers 

'  For  example,  note  the  history  of  the  Jay  treaty  with  Great  Britain. 
^  Reeves,  Diplomacy  of  Tyler  and  Polk,  p.  263. 

3  Especially  with  the  members  of  the  important  Senate  committee'  on 
foreign  relations. 


Foreign  Affairs  329 

>n  particular  matters.  Mr.  Hay  ^  frequently  asked  the  Senators 
vhat  they  thought  of  various  propositions,  whether  the  subject- 
natter  was  a  proper  one  for  negotiation,  and  whether  other  pro- 
dsions  should  be  incorporated.  Senator  Bacon,  in  1906,  stated 
hat  it  was  his  belief  that  Secretary  Hay  conferred  with  many 
Senators  either  in  writing,  or  in  person,  as  to  the  general  arbitra- 
ion  treaty  while  it  was  in  process  of  negotiation.  Mr.  Bacon 
urther  said:  "I  recollect  distinctly  the  Alaskan  treaty.  Time 
ifter  time  and  time  after  time  Mr.  Hay,  then  Secretary  of  State, 
■onferred  with  Senators,  and,  I  presume,  with  all  the  Senators, 
LS  to  the  propriety  of  endeavoring  to  make  that  treaty  and  as  to 
he  various  provisions  which  should  be  incorporated  in  it,  recog- 
lizing  the  deHcacy  of  the  situation;  and  the  provisions  of  that 
reaty  were  well  understood  by  members  of  the  Senate  and  ap- 
)roved  by  members  of  the  Senate  before  it  was  ever  formulated 
ind  submitted  to  Sir  Michael  Herbert."  ^ 

Not  only  has  the  Senate  thus  asserted  the  right  to  participate  in 
he  negotiation  of  treaties ;  it  sometimes  seeks  to  initiate,  by  way 
)f  resolution,  negotiations  with  foreign  countries.  Furthermore, 
L  claim  to  the  right  of  sharing  in  the  initiation  is  sometimes  made 
)y  the  House  of  Representatives.  For  example,  the  Senate  and 
:he  House  once  adopted  a  resolution  requesting  the  President  to 
)pen  negotiations  with  other  powers,  with  a  view  to  making  ar- 
)itration  treaties  providing  for  the  peaceful  settlement  of  inter- 
lational  disputes.  The  President  later  complied  with  this  sug- 
gestion. Congress  even  went  so  far,  in  1902,  as  to  pass  an  act 
idvising  the  President  as  to  the  terms  which  should  be  incorpo- 
ated  in  a  treaty.^ 

When  the  terms  of  a  treaty  are  all  adjusted  with  the  foreign 
)ower,  the  final  draft  is  laid  before  the  Senate,  and  it  may  be 

'  Secretary  of  State  from  1898  to  1905. 

^Congressional  Record,  Vol.  XL,  Part  3,  pp.  21 29-2130. 

'  Even  the  House  of  Representatives  alone  has  gone  so  far  as  to  attempt 
o  participate  indirectly  in  the  negotiations  of  treaties.  It  can  with  perfect 
)ropriety  request  the  President  to  submit  to  it  papers  relating  to  the  work 
»f  the  executive  department;  and  in  1796  it  asked  the  President,  by  resolu- 
ion,  to  lay  before  it  a  copy  of  the  instructions  to  the  minister  of  the  United 
itates  who  negotiated  the  treaty  with  Great  Britain,  together  with  other 
locuments  relating  to  the  treaty,  excepting  such  papers  as  the  President 
night  deem  improper  to  disclose.  Washington  responded  that  the  House 
lad  no  share  in  the  treaty-making  power  and  declined  to  transmit  the  papers. 


330  American  Government  and  Politics 

approved,  amended,  or  rejected.  Like  nominations  to  federal 
offices,  treaties  are  considered  in  an  '' executive  session,"  which  is 
supposed  to  be  secret.  In  practice,  however,  its  transactions  are 
invariably  reported  in  more  or  less  accurate  detail  in  the  press.^ 
When  the  Senate  approves  a  treaty,  it  is  sent  to  the  President, 
who  ordinarily  completes  the  process  by  the  formal  exchange  of 
ratifications  with  the  representative  of  the  foreign  country.  If 
he  sees  fit,  he  may  refuse  to  take  this  final  step,  and  thus  prevent 
a  duly  signed  and  approved  treaty  from  going  into  effect.  This 
power  of  holding  up  a  treaty  is  based  on  the  ground  that,  through 
the  agents  of  the  federal  government  abroad,  the  President  has 
access  to  sources  of  information  closed  to  the  Senate,  and  may 
discover  at  a  late  hour  satisfactory  reasons  for  not  exchanging 
the  ratifications.  If  the  Senate  amends  a  treaty,  the  President, 
of  course,  must  secure  the  acceptance  of  the  changes  by  the  for- 
eign power  concerned.  When  the  treaty  is  at  last  completed,  it  is 
made  a  part  of  the  law  of  the  land  by  an  official  proclamation. 

World  Politics 

It  is  an  American  tradition  that  the  United  States  enjoys  a 
splendid  isolation  from  the  rest  of  the  powers  of  the  world  — 
especially  of  Europe.  Accordingly,  the  entrance  of  the  United 
States  into  "world  politics"  since  the  Spanish  War  is  quite  com- 
monly regarded  as  a  violation  of  our  historic  poUcy.  This  tra- 
dition of  isolation  runs  back  to  the  beginning  of  our  history 
as  an  independent  nation.  It  was  voiced  by  Washington  in  his 
Farewell  Address,  in  which  he  advised  his  countrymen  to  extend 
their  commercial  relations,  but  warned  them  to  have  as  little 
poHtical  connection  with  Europe  as  possible.^  "Europe,"  he 
said,  "has  a  set  of  primary  interests  which  to  us  have  none,  or  a 
very  remote  relation.  Hence  she  must  be  engaged  in  frequent 
controversies,  the  causes  of  which  are  essentially  foreign  to  our 
concerns.  Hence  it  would  be  unwise  in  us  to  implicate  ourselves 
by  artificial  ties  in  the  ordinary  vicissitudes  of  her  politics,  or  the 
ordinary  combinations  and  colHsions  of  her  friendships  or  en- 

^Reinsch,  Readings,  p.  179. 

^Of  course  he  had  in  mind  primarily  offensive  and  defensive  alliances 
such  as  that  made  with  France  in  1778,  which  caused  so  much  trouble  when 
war  broke  out  in  1 793  between  that  country  and  Great  Britain. 


Foreign  Affairs  331 

ciities.  ...  It  is  our  true  policy  to  steer  clear  of  permanent 
lliances  with  any  portion  of  the  foreign  world." 

The  very  commercial  interests,  however,  which  Washington 
rged  his  countrymen  to  develop  in  the  world's  markets  have 
een,  from  the  beginning,  drawing  us  more  and  more  into 
he  current  of  world  poUtics;  and  at  no  time  has  the  United 
tates  refused  to  defend  American  commercial  enterprise  in  any 
art  of  the  globe.  When  the  Pasha  of  TripoU,  discontented 
dth  the  tribute  paid  him,  chopped  down  the  American  flag, 
'resident  Jefferson  immediately  ordered  a  fleet  to  the  Medi- 
erranean.  Commodore  Preble,  who  was  sent  over  in  1803, 
ombarded  the  city  of  Tripoli  and  forced  the  Pasha  to  come  to 
srms.  Again,  in  181 2,  the  Dey  of  Algiers  grew  restive  on  hearing 
f  the  war  between  the  United  States  and  Great  Britain,  com- 
lained  of  the  small  amount  of  tribute  which  he  received,  and 
xpelled  the  American  consul-general  and  American  citizens 
:om  his  territory.  At  the  close  of  the  war,  Congress  passed  an 
ct  for  the  protection  of  American  commerce  against  Algerian 
ruisers;  Bainbridge  and  Decatur,  with  two  squadrons,  were 
peedily  despatched  to  the  Mediterranean,  and  in  a  short  time 
be  Dey  of  Algiers  came  to  terms,  agreeing  not  to  levy  any  more 
ribute  on  the  United  States.  Thus  by  our  vigorous  action  we 
elped  to  rid  the  Mediterranean  of  the  Barbary  freebooters. 

Again,  in  1843,  immediately  after  Great  Britain  had  battered 
own  the  Chinese  wall  of  exclusion,  the  federal  government  sent 
'aleb  Gushing  to  China  to  obtain  for  the  United  States  those 
ommercial  privileges  which  had  been  so  recently  extended  to 
tie  British.  It  was  due  to  the  initiative  of  the  United  States 
tiat  Japan  was  opened  to  Western  trade.  In  1853  Commodore 
latthew  C.  Perry,  in  command  of  a  squadron  of  four  vessels,  and 
earing  a  special  mission  from  the  United  States,  demanded  as 

right,  not  as  a  favor,  "those  acts  of  courtesy  which  are  due 
rom  one  civilized  nation  to  another";  and  by  a  firm  policy 
rought  the  Japanese  imperial  government  to  terms  in  the  treaty 
f  March  31,  1854. 

Many  examples  might  be  given  illustrating  the  forceful  manner 
1  which  the  government  has  protected  American  commercial 
[iterests  in  the  four  corners  of  the  world;  but  it  is  sufficient  to 
ay  that  we  have  been  a  world  power,  as  far  as  has  been  neces- 
ary,  from  the  beginning  of  our  history.    In  a  word,  the  protection 


^^2  American  Government  and  Politics 

of  our  government  has  steadily  advanced  with  the  extension  of 
our  material  interests,  and  the  foreign  policy  of  the  last  ten  years 
is  no  breach  in  our  historical  development.  President  Taft's 
telegram  to  the  Regent  of  China  in  the  summer  of  1909  demand- 
ing for  American  financiers  a  share  in  the  new  Chinese  railway 
loan  is  really  no  departure  from  the  policy  that  led  to  the  demand 
of  the  open  door  through  the  mission  of  Caleb  Cushing  more  than 
half  a  century  before. 

In  a  way,  of  course,  this  is  not  a  violation  of  the  principles 
laid  down  by  Washington  in  his  Farewell  Address,  for  it  was 
against  entangling  alHances  —  not  commercial  relations  —  that 
he  warned  us.  The  protection  of  those  very  commercial  inter- 
ests, however,  has  drawn  us  into  intimate  connections  with  other 
foreign  powers,  and  may  at  any  time  lead  to  the  necessity  of 
cooperating  with  them  in  military  expeditions.  For  example, 
American  troops  were  found  alongside  those  of  Russia,  Germany, 
Japan,  Britain,  and  the  other  powers  in  the  recapture  of  Peking 
and  the  reestablishment  of  foreign  rights  in  Chinese  territory 
after  the  disorders  of  1900.  A  near  approach  to  a  formal  alliance 
in  the  protection  of  American  interests  was  made  in  November, 
1908,  when  Ambassador  Takahira  of  Japan,  and  Secretary  Root 
for  the  United  States,  by  an  exchange  of  formal  notes,  announced 
their  agreement  on  the  following  principles:  the  two  countries 
are  to  develop  their  commerce  on  the  Pacific  Ocean  freely  and 
peacefully;  they  have  no  aggressive  intentions,  but  wish  to  main- 
tain the  status  quo  in  that  region  and  the  open  door  in  China ;  they 
are  firmly  resolved  to  respect  each  other's  territories;  they  are 
determined  to  preserve  the  independence  and  integrity  of  China 
and  the  principle  of  equal  opportunity  for  all  countries  to  carry 
on  trade  and  commerce  there;  and,  in  case  of  any  event  disturb- 
ing the  above  principles,  the  two  governments  will  confer  on  the 
most  useful  measures  to  be  taken. 

The  United  States,  furthermore,  participates  from  time  to  time 
in  the  assemblies  and  councils  of  foreign  nations.  American 
representatives  were  sent  to  Berlin,  in  1884,  where  a  European 
Congress  was  held  for  the  purpose  of  adjusting  territorial  ques- 
tions in  Africa  and  deciding  the  fate  of  the  Congo  Free  State. 
Again,  in  1906,  American  representatives  were  sent  to  the  con- 
ference at  Algeciras  in  Spain,  where  certain  conflicts  among 
European  powers  over  their  respective  interests  in  Morocco  were 


Foreign  Affairs  j^^ 

adjusted.  The  United  States  also  took  a  very  prominent  part  in 
the  Hague  conferences  of  1899  and  1907 ;  and  within  recent  years, 
especially  through  the  activities  of  Secretary  Blaine  and  Secre- 
tary Root,  we  have  been  drawn  into  closer  commercial  and 
intellectual  relations  with  the  Latin-American  republics.  It  is 
apparent  that  the  "splendid  isolation"  of  the  United  States,  as 
contemplated  by  many  early  poHtical  theorists,  has  never  been 
possible  in  practice.  Moreover,  no  political  doctrines  with  re- 
gard to  our  independence  from  the  rest  of  the  world  are  strong 
enough  to  overcome  those  material  and  moral  forces  which  are 
linking  our  destinies  to  those  of  the  world  at  large. 

The  Monroe  Doctrine 

No  description  of  the  foreign  poHcy  of  the  United  States  is 
complete  which  does  not  take  into  account  the  Monroe  Doctrine 
as  appUed  to  the  Latin-American  countries  in  their  several  rela- 
tions with  the  European  powers.  It  would  be  misleading,  however, 
to  attempt  a  definition  of  the  Monroe  Doctrine  in  the  abstract; 
for  it  was  enunciated  under  pecuHar  historical  circumstances 
and  has  taken  various  forms  from  time  to  time. 

It  originated  during  the  first  quarter  of  the  nineteenth  century, 
partially  as  the  result  of  the  fear  of  European  despotism  enter- 
tained in  the  United  States,  but  more  especially  as  the  result  of  an 
attempt  to  secure  for  American  traders  and  nierchants  a  large 
share  of  the  economic  advantages  to  be  derived  from  the  inde- 
pendence of  the  former  Spanish  colonies.  (/Spain  had  system- 
atically endeavored  to  monopolize  the  trade  of  her  American 
possessions;  and  thus  the  United  States  and  England  —  the  two 
great  trading  nations  especially  anxious  to  develop  their  interests 
in  Latin- America  —  were  legally  excluded  from  a  rich  field  of 
enterprise.^  When  Napoleon  placed  his  brother  Joseph  upon 
the  throne  of  Spain,  in  1808,  the  Spanish-American  colonies  re- 
sisted the  rule  of  the  new  monarch  and  began  to  taste  the  sweets 
of  commercial  freedom  before  their  long  struggle  for  indepen- 
dence was  brought  to  a  successful  conclusion.  American  and 
EngUsh  merchants  were  quick  to  seize  the  opportunity  of  open- 
ing up  profitable  trade  relations  with  these  new  states  which,  after 

*  Smuggling  had  been  going  on,  however,  for  more  than  two  centuries  in 
spite  of  Spain's  protests. 


334 


American  Government  and  Politics 


three  centuries  of  subjection  to  Spanish  monopoly,  were  only  too 
eager  to  seize  the  occasion  to  buy  freely  in  the  cheapest  market 
and  sell  in  the  dearest. 

Spain,  however,  was  loath  to  surrender  these  colonies  and 
the  lucrative  business  with  them;  but  when,  in  1820,  she 
was  preparing  an  expedition  to  suppress  the  war  for  indepen- 
dence in  America,  a  serious  revolution  broke  out  within  her 
own  borders  and  quickly  spread  over  into  Italy.  It  looked  for 
a  time  as  if  the  whole  settlement,  which  had  been  reached  by  the 
powers  at  Vienna  in  181 5  after  the  downfall  of  Napoleon,  would 
be  undone  by  revolutionary  violence.  Anticipating  such  a 
danger,  Austria,  Prussia,  England,  and  Russia  had  formed  an 
aUiance  in  18 15  for  the  express  purpose  of  maintaining  the  re- 
stored Bourbon  king  in  France  and  preventing  a  renewed  disturb- 
ance of  the  peace  of  Europe.  In  order  to  effect  their  ends,  these 
powers  agreed  to  hold  periodical  meetings  for  the  purpose  of 
reviewing  their  interests  and  taking  such  measures  as  should  be 
deemed  necessary  for  the  preservation  of  pubUc  order. 

Shortly  before  this  agreement  was  reached,  the  monarchs  of 
Austria,  Prussia,  and  Russia,  on  the  suggestion  of  the  Tsar 
Alexander  I,  had  formed  a  sort  of  a  pious  alUance,  according  to 
which  the  three  rulers  were  to  view  one  another  as  brothers  and 
"delegates  of  Providence  to  govern  three  branches  of  the  same 
family,"  and  to  base  their  policies  "  upon  the  sublime  truths 
which  are  taught  by  the  eternal  religion  of  God  our  Saviour."  ^ 
This  agreement  was  known  as  "The  Holy  Alliance"  —  a  term 
which  was  afterwards  quite  indiscriminately  applied  to  the  com- 
bined powers  of  Europe  in  their  efforts  to  maintain  the  settlement 
of  Vienna. 

As  soon  as  the  revolution  of  1820  broke  out  in  Spain,  Metter- 
nich,  the  astute  Austrian  diplomat,  invited  Russia,  Prussia, 
France,  and  England  to  unite  in  suppressing  the  development  of 
" revolt  and  crime."  In  1822,  the  representatives  of  these  powers 
met  at  Verona  to  discuss  their  common  interests  and  decide 
what  should  be  done  with  Spain.  At  this  Congress  all  of  the 
powers,  except  England,  were  anxious  to  devise  a  plan  by  which 

^  For  this  remarkable  document,  see  Robinson  and  Beard,  Readings  in 
Modern  European  History,  Vol.  I,  p.  384;  and  for  a  more  extended  account  of 
the  European  situation,  see  Robinson  and  BesirdyJDevelopment  of  Msidern 
Europe,  Vol.  I,  p.  357. 


Foreign  Affairs  33  c 

they  might  aid  Spain  in  reconquering  her  rebelHous  colonies, 
although  as  a  matter  of  fact  they  were  really  in  no  position 
to  afford  the  necessary  military  support.  England,  however, 
refused  to  cooperate,  partially  because  of  the  more  liberal  spirit 
prevaiHng  among  her  people,  but  more  especially  because  her 
economic  interests  were  certainly  on  the  side  of  the  revolutionary 
Spanish  colonists  with  whom  she  had  developed  a  lucrative  trade. 

The  United  States  occupied  about  the  same  economic  position; 
and,  in  view  of  what  seemed  a  serious  intervention  in  American 
affairs  by  the  great  despotic  European  powers,  President  Monroe, 
in  his  message  to  Congress  of  December,  182^,  called  attention  to  ^ 
the  impending  dangers,  and  added :  "  We  owe  it  therefore  to  candor 
and  to  the  amicable  relations  existing  between  the  United  States 
and  these  powers  to  declare  that/We  should  consider  any  attempt, 
on  their  part  to  extend  their  system  to  any  portion  of  this  hemi-/; 
sphere  as  dangerous  to  our  peace  and  safety y^  With  the  existing 
colonies  or  dependencies  of  any  European  power  we  have  not 
interfered  and  shall  not  interfere.  But  with  the  governments  who 
have  declared  their  independence  and  maintained  it,  and  whose 
independence  we  have  on  great  consideration  and  on  just  prin- 
ciples acknowledged,  we  could  not  view  any  interposition  for  the , 
purpose  of  oppressing  them  or  controlling  in  any  other  manner 
their  destiny  by  any  European  power  in  any  other  light  than  a 
manifestation  of  an  unfriendly  disposition  toward  the  United 
States."  In  the  same  message  in  which  this  doctrine  was  an- 
nounced there  was  another  significant  declaration,  called  forth  by 
a  decree  of  182 1  issued  by  the  Tsar  of  Russia,  claiming  the  north- 
west shore  of  North  America  down  to  the  51st  parallel.  With 
regard  to  this  claim  President  Monroe  declared,  "that  the  Ameri- 
can continents,  by  the  free  and  independent  condition  which  they 
have  assumed  and  maintain,  are  henceforth  not  to  be  considered 
as  subjects  for  future  colonization  by  any  European  powers." 

In  the  course  of  time  the  principles  announced  in  this  famous 
message  came  to  mean,  practically,  that  the  United  States,  while 
respecting  the  existing  rights  of  European  nations  in  this  hemi- 
sphere, would  oppose  any  intervention  interfering  with  the  free- 
dom of  self-government  in  any  territory  whose  inhabitants  had 
cast  off  European  rule.  When  a  dispute  arose  between  Gr£^t 
Britain  and  Venezuela  over  the  boundaries  of  their  respective 
territories,  Mr.  Olney,  then  Secretary  of  State  under  Mr.  Cleve- 


336  American  Government  and  Politics 

land,  declared  (in  1895)  that,  while  the  United  States  did  not 
intend  to  help  relieve  any  Latin- American  state  from  its  obliga- 
tions under  international  law,  and  did  not  intend  to  prevent  any 
European  government,  directly  interested,  from  enforcing  such 
obligations  or  inflicting  punishment  for  a  breach  of  them,  it 
would  not  permit  any  European  country  or  combination  of 
countries  to  "forcibly  deprive  an  American  state  of  the  right  and 
power  of  self-government  and  of  shaping  for  itself  its  own  poUtical 
fortunes  and  destinies."  The  strong  stand  taken  by  President 
Cleveland  in  this  interpretation  of  the  Monroe  Doctrine  kindled 
the  war  spirit;  but  fortunately  the  dispute  was  peaceably  settled 
by  arbitration.  Again,  in  1901,  when  Germany  was  about  to 
bring  force  to  bear  upon  Venezuela  for  the  satisfaction  of  claims, 
President  Roosevelt  declared:  "the  Monroe  Doctrine  is  a  dec- 
laration that  there  must  be  no  territorial  aggrandizement  by  any 
non-American  power  at  the  expense  of  any  American  power  on 
American  soil.  .  .  .  We  do  not  guarantee  any  state  against 
punishment,  if  it  misconducts  itself,  provided  that  punishment 
does  not  take  the  form  of  the  aquisition  of  territory  by  any  non- 
American  power." 

Alongside  this  interpretation  of  the  Monroe  Doctrine  as  "the 
principle  of  the  limitation  of  European  power  and  influence  in 
the  western  hemisphere"  ^  has  come  a  correlative  doctrine  that 
the  United  States  must  accept,  to  some  degree,  responsibility  for 
the  conduct  of  the  Latin- American  countries  which  are  to  be 
defended  against  European  aggrandizement.  This  correlative 
principle  President  Roosevelt  announced  in  1904:  "  If  a  nation 
shows  that  it  knows  how  to  act  with  decency  in  industrial  and 
poUtical  matters,  if  it  keeps  order  and  pays  its  obhgations,  then 
it  need  fear  no  interference  from  the  United  States.  Brutal 
wrong-doing  or  impotence  which  results  in  the  general  loosening 
of  the  ties  ofciviUzed  society  may  finally  require  intervention 
by  some  civiHzed  nation,  and  in  the  western  hemisphere  the 
United  States  cannot  ignore  its  duty."  ^  This  same  view  was 
taken  by  President  Taft  in  his  message  of  1909:  "With  the 
changed  circumstances  of  the  United  States  and  the  republics  to 
the  south  of   us,  most  of   which  have  great  natural  resources, 

^  J.  B.  Moore,  American  Diplomacy,  p.  162. 

^  Moore,  op.  cit.,  p.  165.  See  above,  p.  197,  for  the  Santo  Domingo  affair 
illustrating  this  point. 


Foreign  Affairs  337 

able  government,  and  progressive  ideals,  the  apprehension  which 
ive  rise  to  the  Monroe  Doctrine  may  be  said  to  have  nearly 
Lsappeared,  and  neither  the  doctrine  as  it  exists  nor  any  other 
DCtrine  of  American  poHcy  should  be  permitted  to  operate  for 
le  perpetuation  of  irresponsible  government,  the  escape  of  just 
Dhgations  or  the  insidious  allegation  of  dominating  ambitions 
1  the  part  of  the  United  States." 

In  other  words,  the  Monroe  Doctrine  seems  to  mean  that, 
hile  the  United  States  will  not  permit  any  European  power  to 
;ize  new  dominions  in  the  western  hemisphere,  it  will  ordinarily 
low  all  powers  to  safeguard  property  rights  in  any  Latin- 
merican  country. 

International  Law  and  Peace 

In  common  with  the  other  civihzed  nations  the  United  States 
jcognizes  international  law  as  a  part  of  its  law.  International 
,w  is  a  vast  complex  of  rules  and  regulations  governing  the  rela- 
ons  of  nations  in  time  of  peace  and  in  time  of  war  —  rules  which 
re  to  be  found  in  treaties  and  agreements,  the  statutes  of  various 
3untries,  the  doctrines  laid  down  by  high  judicial  tribunals,  in  the 
rinciples  enunciated  by  authoritative  writers,  and  finally  in  the 
jcognized  practices  of  nations. 

It  is  a  mistake  to  regard  international  law  as  nieifily  a  body  of 
miable  theories  that  may  be  broken  at  will  by  any  nation.  It 
;  true  that  there  is  no  world  executive  authority  or  judicial 
ribunal  to  enforce  the  practices  of  international  law  by  punishing 
ff ending  nations;  and  this  has  led  many  legists  to  deny  even  the 
a  me  of  "law"  to  the  rules  governing  the  intercourse  of  nations, 
n  the  ground  that  they  have  no  sanction  beyond  the  mere  volun- 
ary  approval  of  individual  nations.  This  view  overlooks  the 
ict  that  there  are  other  sanctions  than  those  of  mere  material 
orce  and  that  the  very  interests  and  necessities  of  each  nation 
ompel  it  to  observe  certain  well-defined  rules  in  the  conduct  of 
ts  business  with  other  countries.  The  domestic  law  of  every 
lation  is  constantly  being  violated,  notwithstanding  the  sanction 
)f  force  upon  which  it  rests.  For  instance,  American  citizens 
)ften  violate  with  impunity  the  customs  laws  in  spite  of  the  pen- 
dties  which  may  be  imposed  for  the  offence;  but  the  United  States 
vould  not  think  of  seizing  arbitrarily  a  British  merchant  vessel 


^^S  American  Government  and  Politics 

in  the  harbor  of  New  York  and  thus  run  the  risk  not  only  of 
serious  commercial  loss,  but  also  of  a  costly  war. 

It  is  impossible,  of  course,  in  a  treatise  of  this  character  to  go 
into  the  content  of  international  law  at  any  length,  but  -some 
notion  of  the  principles  which  it  embodies  seems  necessary  to 
give  definiteness  and  reality  to  the  statement  that  international 
law  is  not  a  collection  of  theories  and  moral  principles,  buL^ 
substantial  body  of  rules  and  regulations  appUcable  to  the  con- 
duct of  intercourse  between  states.  In  international  law  we 
find  laid  down  the  principles  defining  what  may  be  regarded  as 
an  independent  state  (which  is  the  "person"  or  "subject"  of 
international  law);  the  fundamental  rights  and  duties  of  states; 
the  methods  by  which  new  states  come  into  existence  and  are 
recognized;  the  character  of  the  property  of  a  state;  methods  of 
acquiring  property;  the  territorial  waters  of  a  state;  the  privi- 
leges and  immunities  of  diplomatic  agents;  the  jurisdiction  of  a 
state  over  aliens  within  its  borders;  piracy;  grounds  and  condi- 
tions upon  which  one  state  may  interfere  in  the  affairs  of  other 
states;  principles  of  expatriation  and  naturalization;  the  mak- 
ing and  abrogating  of  treaties;  arbitration,  mediation,  and  acts 
mitigating  the  rigors  of  war.  These  matters  are  treated  under 
that  branch  of  international  law  known  as  the  law  of  peace. 

Even  the  practices  of  war  are  regulated  by  well-accepted 
rules.  The  law  of  war,  for  example,  governs  such  topics  as  the 
declaration  of  war,  non-combatants,  privateering,  the  prisoners 
of  war  and  their  treatment,  the  instruments  of  war  and  bom- 
bardment of  towns,  and  the  use  of  explosives;  the  effect  of  war 
upon  the  property  of  belligerent  states,  their  subjects  and  the 
subjects  of  neutral  states;  the  effect  of  mihtary  occupation  upon 
property  on  land;  the  rights  and  duties  of  neutrals;  contraband 
of  war;  blockade;  right  of  search;  and  prize  courts. 

On  all  of  these  topics  of  international  law  definite  information 
is  to  be  secured  from  decisions  of  courts,  treaties,  statutes, 
official  documents,  and  authoritative  writers;  and  while  a 
variety  of  opinions  may  be  entertained  by  the  legists  of  different 
nations,  it  must  be  remembered  that  lawyers  and  courts  are  by 
no  means  always  agreed  as  to  what  the  domestic  law  is  on  any 
particular  point.^ 

'  The  student  will  do  well  to  refer  at  this  point  to  the  monumental  collec- 
tion of  material  on  international  law  prepared  by  Professor  J.  B.  Moore, 


Foreign  Affairs  339 

Strictly  speaking,  international  law  is  not  a  body  of  world- 
Lw,  but  a  body  of  rules  which  is  recognized  by  each  civilized 
ower  as  a  part  of  its  domestic  law.  "International  law," 
lid  Mr.  Justice  Gray  of  the  Supreme  Court  of  the  United  States, 
1  an  opinion,^  "is  part  of  our  law,^  and  must  be  ascertained  and 
dministered'by  the  courts  of  justice  of  appropriate  jurisdiction 
s  often  as  questions  of  right  depending  upon  it  are  duly  pre- 
mted  for  their  determination.  For  this  purpose,  where  there 
.  no  treaty  and  no  controlUng  executive  or  legislative  act  or 
idicial  decision,  resort  must  be  had  to  the  customs  and  usages 
E  civiUzed  nations ;  and  as  an  evidence  of  these  to  the  works  of 
irists  and  commentators  who  by  years  of  labor,  research,  and 
>fperience  have  made  themselves  pecuHarly  well  acquainted 
ith  the  subjects  of  which  they  treat.  Such  works  are  resorted 
)  by  judicial  tribunals,  not  for  the  speculations  of  their  authors 
Dncerning  what  the  law  ought  to  be,  but  for  trustworthy  evidence 
[  what  the  law  really  is." 

An  international  tribunal  independent  of  the  governments  of 
articular  states,  enforcing  principles  of  international  law,  and 
ijudicating  disputes  between  different  nations,  is  as  yet  an  un- 
jaHzed  dream  of  those  who  hope  for  the  establishment  of  world 
eace.  Nevertheless,  it  is  contended  that  we  have  made  gigantic 
;rides  in  that  direction,  although  the  complete  ideal  may  never 
e  attained.  From  time  to  time  during  the  nineteenth  century, 
le  United  States  has  resorted  to  the  practice  of  arbitration  for 
le  purpose  of  adjusting  controversies  with  foreign  countries, 
he  first  treaty  signed  with  Great  Britain  in  1794  after  the  con- 
usion  of  peace  provided  for  three  tribunals  or  commissions  to 
rbitrate  certain  questions  which  threatened  to  bring  on  a  new 
)nflict  between  the  two  countries;  and  many  irritating  contro- 
ersies  over  the  boundaries  between  the  United  States  and 
anada  and  the  fishing  rights  of  the  respective  countries  have 
een  adjusted  by  way  of  arbitration. 

iternational  Law  Digest  (8  vols.,  Government  Printing  Office).  Even 
lOugh  making  no  attempt  to  go  into  the  technicalities  of  these  subjects,  the 
acher  should  impress  upon  the  student  the  notion  that  international  law 
not  merely  a  body  of  theories  elaborated  by  the  enthusiasts  for  intema- 
3nal  peace. 

^i75U.  S.  R.,  677. 

2  The  Constitution  recognizes  the  law  of  nations  by  authorizing  Congress 

define  offences  against  it. 


340  American  Government  and  Politics 

The  most  famous  case  of  arbitration  in  American  history  was 
that  of  "the  Alabama  Claims,"  which  grew  out  of  depredations 
committed  upon  American  merchant  vessels  during  the  Civil 
War  by  ships  which  Great  Britain  allowed  to  be  constructed 
in  British  ports  which  were  used  as  a  base  of  operations  for  the 
Confederate  government.  After  a  good  deal  of  angry  dispute, 
the  two  countries  agreed  by  a  treaty  of  187 1  to  submit  the  whole 
matter  to  a  tribunal  composed  of  one  citizen  of  the  United  States, 
one  British  subject,  and  three  other  members,  named  by  the  King 
of  Italy,  the  President  of  Switzerland,  and  the  Emperor  of  Brazil, 
respectively.  This  tribunal  met  in  Geneva,  and  after  prolonged 
sessions  it  came  to  the  conclusion  that  with  regard  to  certain 
vessels  the  British  government  had  violated  or  neglected  its  duties 
as  a  neutral  power;  and  an  award  of  damages  aggregating 
$15,500,000  was  rendered  in  favor  of  the  United  States,  and 
paid,  in  spite  of  the  protest  of  the  British  member  of  the  tribunal, 
and  some  feeling  of  resentment  in  Great  Britain.^ 

The  United  States,  therefore,  had  had  a  long  experience  in  the 
peaceful  adjustment  of  controversies,  when  it  was  invited,  in 
1898,  in  common  with  the  other  powers  of  the  world,  by  the  Tsar 
Nicholas  II,  of  Russia,  to  participate  in  a  conference  at  the 
Hague  for  the  purpose  of  discussing  the  subject  of  reducing 
excessive  armaments.  The  first  Hague  conference,  which  met 
in  1899,  was  unable  to  come  to  an  agreement  on  the  main  ques- 
tion, and  merely  recommended  the  nations  to  examine  the  possi- 
bility of  Hmiting  armed  forces  by  land  and  sea.  The  powers 
however,  agreed  to  recognize  the  right  of  any  nation,  without 
prejudice,  to  offer  its  services  to  countries  at  war  with  one  an- 
other, as  an  aid  in  friendly  mediation.  The  first  conference,  fur- 
thermore, recommended  parties  unable  to  come  to  an  agreement 
by  negotiation  to  submit  matters  not  involving  national 
honor  or  vital  interests  to  an  investigation  by  an  impartial  com- 

*  In  addition  to  resorting  to  arbitration  in  a  large  number  of  cases,  the 
government  of  the  United  States  has  been  instrumental  in  preventing  war, 
and  in  restoring  peace,  by  offering  to  countries  on  the  eve  of  war  or  already 
at  war  its  services  in  settling  the  dispute  or  in  terminating  the  armed  con- 
flict. For  example,  in  1871,  it  tendered  its  good  offices  in  a  war  between 
Spain  and  certain  South  American  republics,  and  secured  an  agreement  to 
an  armistice  which  eventually  resulted  in  a  treaty  of  peace.  In  1905  Presi- 
dent Roosevelt  was  instrumental  in  bringing  the  Russo-Japanese  war  to  a 
close. 


Foreign  Affairs  341 

mission  of  inquiry,  to  be  instituted  by  an  arrangement  between 
the  parties  to  the  controversy.  Finally,  the  conference  agreed 
upon  the  establishment  of  a  permanent  court  of  arbitration  to 
consist  of  not  more  than  four  persons  from  each  country,  se- 
lected by  the  respective  nations  from  among  their  citizens,  "of 
recognized  competence  in  international  law,  enjoying  the  highest 
moral  reputation."  Whenever  two  powers  are  in  a  controversy, 
they  may  submit  the  issue  to  a  tribunal  selected  from  this  long 
list  of  eminent  jurists.  In  common  with  the  other  powers  of 
the  world  the  United  States  has  concluded  with  many  countries 
arbitration  treaties,  agreeing  to  submit  to  arbitration  questions 
which  do  not  affect  national  independence  or  honor.  ^ 

The  results  of  the  first  Hague  conference  led  President  Roose- 
velt, in  1904,  to  propose  a  second  meeting  of  the  powers;  but  he 
yielded  the  honor  of  issuing  the  call  to  Nicholas  II,  who  in  the 
following  year  invited  the  nations  of  the  world  to  participate  in 
the  discussion  of  certain  important  questions,  including  the 
peaceful  settlement  of  international  disputes  and  the  regulation  of 
warfare  on  land  and  sea.  The  conference  (1907)  could  not  agree 
upon  any  plan  for  reducing  mihtary  and  naval  expenditures  or 
estabhshing  general  compulsory  arbitration.  It  devoted  itself 
largely  to  the  regulation  of  the  actual  conduct  of  war,  the  treat- 
ment of  prisoners,  the  bombardment  of  towns,  the  rights  of 
neutrals,  etc.,  and  dismissed  the  question  of  Hmiting  armaments 
by  a  resolution  declaring  that  "it  is  highly  desirable  that  the 
governments  should  resume  a  serious  study  of  the  question." 

^  See  Readings,  p.  305,  for  an  illustration. 


CHAPTER  XVII 

NATIONAL  DEFENCE 

Congress  enjoys  an  unlimited  power  to  raise  and  support 
armies,  subject  to  the  constitutional  requirement  that  military 
appropriations  shall  not  be  for  a  longer  term  than  two  years. 
Under  this  power,  Congress  has  provided  a  land  force  of  two  great 
branches:   the  Army  of  the  United  States  and  the  Militia. 

The  Army  and  Militia  of  the  United  States 

I.  The  Army  of  the  United  States,  commonly  known  as  the 
regular  or  standing  army,  is  organized  under  acts  of  Congress^ 
which  provide  the  maximum  number  of  men  and  officers,  the 
term  of  service,  the  various  ranks  and  grades,  the  strength  of  the 
regiments  and  other  divisions,  and,  in  a  word,  the  most  elaborate 
details  of  the  system.^  The  total  enlisted  strength  of  the  army 
is  fixed  by  law  at  not  more  than  100,000  men,^  and  the  number  in 
actual  service,  subject  to  this  restriction,  is  determined  by  the 
President.  According  to  the  report  of  the  Secretary  of  War  for 
the  year  1908,  the  regular  army  was  composed  of  41 16  officers 
and  68,512  enlisted  men,  making  a  grand  total  of  72,628.^ 

This  branch  of  the  army  is  recruited  by  volunteers  who  en- 
list for  a  term  of  three  years'  service. 

For  the  defence  of  the  whole  American  empire  the  regular 
army  is  distributed  among  nine  continental  departments  and  the 
Philippines  division.  Each  of  these  great  departments  has  its 
headquarters  and  its  fortifications,  barracks,  and  military  sta- 
tions at  various  points,  and  is  in  command  of  a  Brigadier-General 

'  See  especially  the  acts  of  February  2,  1901,  January  25,  1907,  and  April 
23,  1908. 

^  For  an  illustrative  extract,  see  Readings,  p.  309.  ^H 

^  Exclusive  of  officers.  ^^M, 

*This  army  is  organized  into  fifteen  regiments  of  cavalry,  six  regiments 
of  field  artillery,  thirty-one  regiments  of  infantry,  a  coast  artillery  corps, 
three  battalions  of  engineers,  a  staff  corps,  and  departmental  organization. 

342 


National  Defence 


343 


or  Major- General  to  whom  troops  are  assigned  according  to  the 
exigencies  of  defence. 

2.  The  second  branch  of  the  land  force  of  the  United  States 
is  the  MiUtia,  estabUshed  by  Congress  under  the  constitutional 
provisions  authorizing  it  to  organize,  arm,  and  discipUne  the 
militia,  govern  such  parts  as  may  be  employed  in  federal  ser- 
vice, prescribe  its  discipUne,  and  call  it  into  the  service  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel  invasions. 

Under  this  power.  Congress  passed  on  January  21,  1903,  and 
May  27,  1908,  two  noteworthy  acts^  designed  to  bring  all  the 
available  men  legally  within  the  service  of  their  country,  and  to 
make  the  organized  miUtia  of  the  several  states,  territories,  and 
the  District  of  Columbia  more  immediately  and  generally  ser- 
viceable in  time  of  need.^  Under  these  laws  all  able-bodied 
citizens  of  the  states,  territories,  and  the  District  of  Columbia, 
between  the  ages  of  eighteen  and  forty-five,  are  declared  to  be 
members  of  the  miUtia  and  are  divided  into  two  classes:  the 
organized  miUtia,  known  as  the  National  Guard  (or  such  other 
names  as  the  states  may  give  to  their  respective  quotas),  and 
the  Reserve  MiUtia.^  Enlistment  in  the  National  Guard  is  purely 
voluntary,  and  many  men  join  for  social  purposes.  The  ordi- 
nary citizen  does  not  even  know  that  he  is  in  the  Reserve 
Militia. 

It  is  further  provided  by  this  new  legislation  that  the  Secretary 
of  War  may  issue  to  the  organized  militia  of  the  several  states 
miUtary  stores  of  all  kinds  and  arrange  for  its  active  participa- 
tion in  the  manoeuvres  and  field  practice  of  the  regular  army. 
The  federal  authorities  detail  officers  to  attend  encampments  of 
the  state  miUtia;  and  in  1907  they  inaugurated  a  plan  of  having 
the  miUtia  participate  with  the  regular  troops  in  their  exercises 
at  certain  places.  Thus  we  have  estabUshed  a  combination 
of  a  regular  army,  always  on  duty  and  ready  for  service,  with  a 
state  miUtia,  which  may  be,  in  time  of  peace,  discipUned  and  pre- 
pared to  take  its  place  in  the  federal  system.  It  is  now  hoped 
that,  in  case  of  an  outbreak  of  hostiUties,  the  confusion,  delays, 
and  readjustments  which  have  accompanied  the  beginnings  of 
every  war  in  our  history,  may  be  obviated;  and  that  the  members 
of  the  state  miUtia,  having  acquired  definite  previous  experience 

'  See  Report  of  the  War  Department  for  1Q08,  Vol.  I,  pp.  33  ff. 
^  Readings,  p.  308,  for  an  extract  from  the  law. 


344  American  Government  and  Politics 

under  federal  supervision  will  be  able  at  once  to  assume  their 
duties  in  the  regular  line  of  defence.^  However,  some  claim 
that  the  new  system  is  no  considerable  improvement. 

This  great  force  is  not  only  at  the  disposal  of  the  federal  gov- 
ernment in  case  of  invasion  or  war  with  a  foreign  nation  or  rebel- 
Hon  against  the  authority  of  the  United  States.  Whenever  the 
President  is  unable,  with  the  regular  force  at  his  command,  to 
execute  the  laws  of  the  Union,  he  may  call  out  such  number  of 
the  miUtia  of  any  state  or  territory  or  the  District  of  Columbia 
as  he  may  deem  necessary  to  meet  the  situation.  He  does  this 
under  authority  of  an  act  of  Congress. 

This  unquestionably  puts  a  large  power  in  the  hands  of  the 
President,  for  it  is  left  to  his  discretion  to  determine  when  it  is 
necessary  to  call  out  the  miUtia  and  the  extent  to  which  it  may 
be  employed.  "The  power  thus  confided  by  Congress  to  the 
President  is  doubtless  of  a  very  high  and  deHcate  nature,"  said 
Justice  Story,^  commenting  on  an  earlier  statute  of  a  similar 
character.  "A  free  people  are  naturally  jealous  of  the  exercise 
of  mihtary  power;  and  the  power  to  call  the  miUtia  into  actual 
service  is  certainly  felt  to  be  one  of  no  ordinary  magnitude. 
But  it  is  not  a  power  which  can  be  executed  without  a  correspond- 
ent responsibility.  .  .  .  By  whom  is  the  exigency  [as  to  the 
necessity  of  using  the  miUtia]  to  be  judged  of  and  decided?  Is 
the  President  the  sole  and  exclusive  judge  whether  an  exigency 
has  arisen?  .  .  .  We  are  all  of  the  opinion  that  the  authority  to 
decide  whether  the  exigency  has  arisen  belongs  exclusively  to  the 
President  and  that  his  decision  is  conclusive  upon  all  other  per- 
sons. We  think  that  this  consideration  necessarily  results  from 
the  nature  of  the  power  itself  and  from  the  manifest  object  con- 
templated by  act  of  Congress." 

Another  branch  of  the  army  of  the  United  States  in  war  time 
has  been  composed,  heretofore,  of  special  volunteers.  Every  one 
acquainted  with  history  knows  how,  in  the  War  of  1812,  the 
Mexican,  the  Civil,  and  the  Spanish  wars,  great  reUance  was 
placed  upon  the  citizen  soldiers  called  into  service  by  procla- 
mation of  the  President  under  authority  of  acts  of  Congress.^ 


*  The  total  number  of  the  organized  militia,  including  commissioned  officers 
and  enlisted  men,  is  estimated  (1909)  at  110,941,  and  unorganized  reserve 
militia  at  14,987,011. 

2  Martin  v.  Mott,  12  Wheaton,  19.  ^  Readings,  p.  310, 


I 


National  Defence  345 

It  has  been  the  usual  practice  to  accept,  in  the  first  instance, 
members  of  the  state  militia  who  desired  to  join  the  army,  and 
then  call  for  volunteers  who  had  not  even  been  members  of  the 
militia.  The  high  service  rendered  by  these  soldiers  is  un- 
questioned; according  to  Brigadier- General  Carter,  the  world 
never  saw  better  armies  than  those  composed  of  the  volunteers 
of  1861-65.^  Under  the  present  national  military  system,  how- 
ever, the  organized  miHtia  or  National  Guard  can  be  readily 
called  into  action,  and  owing  to  the  previous  training  under 
federal  supervision,  described  above,  it  ought  to  be  available 
for  effective  work  without  all  the  usual  delays  in  drilUng  and 
equipping.  Nevertheless,  in  a  long  war,  going  beyond  the 
strength  of  the  regular  army  and  the  organized  militia,  the  special 
volunteer  method  would  doubtless  be  again  employed;  and  resort 
might  be  had  to  drafting,  as  in  the  Civil  War. 

Under  its  cqnstitutional  authority.  Congress  has  provided  an 
elaborate  set  of  regulations  for  the  Army  of  the  United  States. 
Soldiers  in  mihtary  service  are  under  special  rules  designed  to 
preserve  discipHne  and  good  order  in  time  of  peace  as  well  as 
war. 

The  enforcement  of  military  law  is  placed  in  the  hands  of  spe- 
cial military  courts  known  as  courts-martial.  A  court-martial  is 
not  regarded  as  a  portion  of  the  federal  judiciary,  but  belongs 
to  the  executive  department  of  the  government,  and  is  not  limited 
by  those  provisions  requiring  indictment  by  grand  jury  and  trial 
by  jury,  as  in  ordinary  cases.  "With  the  sentences  of  courts 
martial,  which  have  been  convened  regularly  and  have  proceeded 
legally  and  by  which  punishments  are  directed,  not  forbidden 
by  law  or  which  are  according  to  the  laws  and  customs  of  the 
sea,  the  civil  courts  have  nothing  to  do,  nor  are  they  in  any 
way  alterable  by  them.  If  it  were  otherwise,  the  civil  courts 
would  virtually  administer  the  rules  and  articles  of  war  irre- 
spective of  those  to  whom  that  duty  and  obligation  has  been 
confided  by  the  laws  of  the  United  States,  from  whose  decisions 
no  appeal  or  jurisdiction  of  any  kind  has  been  given  to  the  civil 
magistrates  or  civil  courts.  But  if  a  court  martial  has  no  juris- 
diction over  the  subject-matter  of  the  charge  it  has  been  con- 
vened to  try  or  shall  inflict  a  punishment  forbidden  by  the  law, 

*  Reinsch,  Readings,  p.  126. 


346  American  Government  and  Politics 

though  its  sentence  shall  be  approved  by  the  officer  having  a  re- 
visory power  of  it,  civil  courts  may,  on  an  action  by  a  party 
aggrieved  by  it,  inquire  into  the  want  of  the  court's  jurisdiction 
and  give  him  redress."  ^ 

The  Navy 

The  navy  of  the  United  States  is  created  and  supported  under 
the  power  of  Congress  "to  provide  and  maintain  a  navy."  The 
naval  arm  of  the  government  consists  of  the  ships  of  war  of 
various  t)^es,  the  officers  and  enlisted  men,  and  the  docks  and 
navy-yards  necessary  to  the  construction  and  maintenance  of 
the  material  equipment.^ 

There  were  in  the  active  service  of  the  navy,  November  i, 
1908,  about  1 800  commissioned  officers,  600  warrant  officers,  and 
40,000  enHsted  men,  exclusive  of  the  marine  corps  —  a  force 
of  267  officers  and  nearly  10,000  men.  The  term  of  service  in  the 
United  States  navy  is  four  years.  ^Inasmuch  as  the  government 
is  desirous  of  reducing  the  number  of  ahens  in  the  navy,  appli- 
cants for  enlistment  must  now  be  American  citizens,  able  to 
read  and  write  English,  and  must  on  entering  the  service  take  the 
oath  of  allegiance. 

The  vessels  of  the  United  States  navy  are  distributed  between 
the  Atlantic  fleet  and  the  Pacific  fleet,  each  under  the  command 
of  a  Rear  Admiral. 

Military  and  Naval  Administration 

On  the  side  of  the  civil  administration,  the  army  and  navy 
are  under  the  control  of  the  Department  of  War  and  the  De- 
partment of  the  Navy,  subject  always,  of  course,  to  the  Presi- 
dent of  the  United  States,  who  in  time  of  peace  as  well  as  war 

^  Dynes  v.  Hoover,  20  Howard,  65. 

On  November  i,  1908,  there  were  twenty-five  battle  ships,  twelve 
armored  cruisers,  thirty-nine  cruisers,  including  all  unarmored  cruising  vessels  of 
above  1000  tons  displacement,  sixteen  torpedo  destroyers,  thirty-two  torpedo 
boats,  twelve  submarines,  and  eleven  coast  defence  vessels,  including  smaller 
battle  ships  and  monitors;  and  there  were  at  that  time  building,  or  author- 
ized, six  battle  ships,  fifteen  destroyers,  and  fifteen  submarines.  This  list 
does  not  include  vessels  more  than  twenty  years  old  (unless  they  have  been 
reconstructed  and  reequipped  since  1900),  colliers,  transports,  repair  ships, 
converted  merchant  vessels  or  other  auxiliaries  or  other  vessels  of  less  than 
a  thousand  tons,  except  the  torpedo  boats. 


National  Defence 


347 


s  the  commander-in-chief  of  our  armed  forces.  The  heads  of 
;hese  departments  are  usually  civilians  without  practical  mili- 
;ary  or  naval  experience. 

The  Secretary  of  War,  appointed  by  the  President  and  Senate, 
iirects  the  military  estabHshments  of  the  United  States;  he 
las  charge  of  the  fortifications,  river  and  harbor  improvements, 
md  bridges;  he  supervises  the  administration  of  the  PhiUppine 
[slands,  the  construction  of  the  Panama  Canal,  and  the  govern- 
nent  of  the  Canal  Zone.  All  matters  relating  to  national  de- 
ence,  sea-coast  fortifications,  the  improvement  in  the  navigable 
?^aters  of  the  United  States,  miUtary  education  at  West  Point, 
md  military  education  of  the  army,  are  under  his  control.  He 
nust  subject  to  examination  all  estimates  of  appropriations  for 
:he  expenses  of  his  department  and  the  entire  military  estab- 
ishment,  including  the  purchase  of  miUtary  suppUes.  He  must 
ilso  scrutinize  all  expenditures  for  the  support,  transporta- 
:ion,  and  maintenance  of  the  army,  and,  in  addition,  all  other 
expenditures  which  may  be  placed  in  his  charge. 

A  great  portion  of  this  heavy  burden  is  directly  assigned  by 
aw  to  an  assistant  secretary  of  war,  who  has  charge  of  many  mat- 
ters—  rivers  and  harbors,  bridges  over  navigable  waters,  the 
-ecruiting  service,  courts  martial,  the  mihtia,  etc.,  and  the  pre- 
iminary  questions  relating  to  Cuba  and  the  Philippines.  To 
reUeve  the  Secretary  and  his  assistant,  a  number  of  routine  duties 
ire  vested  in  a  chief  clerk. 

The  vast  and  comphcated  business  of  the  military  administra- 
tion in  charge  of  the  Department  of  War  is  distributed  as  follows: 
Lhe  adjutant-general  records,  authenticates,  and  transmits  to 
the  troops  and  individuals,  the  orders,  instructions,  and  regula- 
tions which  go  out  from  the  central  administration;  he  also  has 
general  charge  of  the  records  and  statistics  of  the  army.  The 
inspector-general  supervises  the  inspection  of  the  army  in  all 
3f  its  branches.  The  quartermaster-general  has  charge  of  trans- 
portation, buildings,  and  suppUes,  except  rations,  the  purchase 
md  distribution  of  which  are  in  the  control  of  the  commissary- 
general  of  subsistence.  The  surgeon-general  supervises  the 
medical  department  of  the  army.  The  paymaster-general  is 
charged  with  the  payment  of  the  officers  and  men  of  the  army 
md  the  several  employees  of  the  department.  The  chief  of 
engineers  is  at  the  head  of  the  corps  of  engineers  which  looks 


348  American  Government  and  Politics 

after  the  construction  and  maintenance  of  forts,  military  roads, 
and  bridges,  and  river  and  harbor  improvements.  The  ordnance 
department,  which  provides  and  distributes  the  implements  of 
war,  is  in  charge  of  the  chief  of  ordnance.  The  means  of  com- 
munication throughout  all  branches  of  the  army  are  under  the 
scrutiny  of  the  chief  signal  officer.  The  judge-advocate-general 
is  directed  by  law  to  receive,  review,  and  have  recorded  the  pro- 
ceedings of  all  courts-martial,  courts  of  inquiry,  and  mihtary 
commissions;  and  it  is  also  his  duty  to  give  the  Secretary  of  War 
information  and  advice  on  legal  questions.  The  general  super- 
vision of  the  administration  on  the  Philippine  Islands  is  vested 
in  the  chief  of  the  bureau  of  insular  affairs. 

As  a  connecting  Unk  between  the  civil  administration  and  the 
army  in  the  field,  Congress  created,  by  an  act  approved  February 
14,  1903,  a  General  Staff,  to  be  composed  of  officers  detailed  from 
the  army  at  large  under  rules  prescribed  by  the  President.  This 
staff  includes  not  only  general  officers  (major-general  as  chief)  but 
also  colonels,  majors,  and  captains,  thus  giving  the  directing  staff 
points  of  contact  with  the  rank  and  file  of  the  army.  To  keep 
this  body  in  constant  touch  with  the  practical  problems  of  war- 
fare, it  is  provided  that  officers  detailed  to  the  General  Staff  may 
serve  in  that  capacity  for  only  four  years  at  most;  and  on  re- 
turning to  the  army  they  must  remain  there  at  least  two  years 
before  they  can  be  detailed  again,  except  in  time  of  emer- 
gency. The  head  of  the  staff  is  the  Chief -of  the  Staff,  who 
acts  under  the  direction  of  the  President  and  the  Secretary  of 
War. 

It  is  the  duty  of  the  General  Staff  to  prepare  plans  for  national 
defence  and  for  the  mobihzation  of  the  national  forces  in  time 
of  war;  to  investigate  and  report  upon  all  questions  relating  to 
the  efficiency  of  the  army  and  its  state  of  preparation;  to  render 
professional  aid  to  the  Secretary  of  War  and  to  the  general 
officers  and  their  superior  commanders;  and  perform  such  other 
mihtary  duties,  not  otherwise  assigned  by  law,  as  the  President 
may  from  time  to  time  prescribe.  The  office  of  the  Chief  of 
Staff  constitutes,  for  administrative  purposes,  a  supervising  mili- 
tary bureau  in  the  War  Department. 

The  Navy  Department,  created  in  1798,  lis  in  charge  of  the 
Secretary  of  the  Navy,  appointed  by  the  President  and  Senate. 
He  is  authorized  to  perform  such  duties  as  the  President  may 


National  Defence 


349 


assign  him,  and  to  superintend  the  construction,  manning, 
armament,  equipment,  and  employment  of  vessels  of  war.  He 
is  immediately  aided  by  an  assistant  secretary,  and  by  a  chief 
clerk  who  has  charge  of  the  records  and  correspondence,  and  per- 
forms other  routine  duties. 

The  administration  of  the  Navy  Department  is  distributed 
among  the  following  eight  bureaus,  the  general  duties  of  each 
of  which  are  made  clear  by  the  titles:  navigation,  yards  and 
docks,  equipment,  ordnance,  construction  and  repair,  steam 
engineering,  medicine  and  surgery,  and  suppUes  and  accounts. 
There  is  also  in  the  Navy  Department  a  judge-advocate-general 
who  has,  with  reference  to  the  navy,  duties  akin  to  those  per- 
formed by  the  same  officer  in  the  Department  of  War.  There 
is  also  a  commandant  of  the  marine  corps,  which  has  a  vessel 
and  officers  and  men  on  duty  at  each  of  the  several  shore  sta- 
tions of  the  United  States.  The  whole  problem  of  naval  adminis- 
tration is  now  under  critical  discussion,  and  extensive  reorgani- 
zaticJn  is  being  demanded. 

To  assist  in  securing  and  preparing  competent  men  for  the 
army  and  navy,  the  United  States  maintains  two  institutions 
of  higher  learning:  the  Military  Academy  at  West  t'oint  and 
the  Naval  Academy  at  AnnapoUs.  The  course  of  instruction  at 
both  institutions  is  principally  mathematical  and  professional, 
but  it  embraces  also  a  large  range  of  additional  subjects.  The 
full  quota  of  cadets  at  West  Point  is  maintained  by  assigning 
one  cadet  to  each  United  States  Senator  and  one  to  each  con- 
gressional district  and  territory  (including  the  District  of  Colum- 
bia, Porto  Rico,  Alaska,  and  Hawaii),  and  forty  to  the  Presi- 
dent of  the  United  States,  who  appoints  at  his  discretion.  As 
vacancies  occur,  appointments  are  made,  on  the  nomination 
of  the  Senators,  Representatives,  Delegates,  and  the  Presi- 
dent respectively;  but  these  nominees  must  pass  regular  ex- 
aminations testing  their  preparation  for  the  course  of  instruc- 
tion. Midshipmen  for  the  Naval  Academy  are  secured  by 
assigning  two  to  each  Senator,  Representative,  and  Delegate 
in  Congress,  two  to  the  District  of  Columbia,  and  five  to  the 
President.  Graduates  from  these  institutions  are  given  special 
advantages  in  entering  active  service.  Cadets  who  complete 
their  work  at  West  Point  are  commissioned  as  second  Heutenants; 
and  midshipmen  from  Annapolis,  on  passing  their  graduation 


350  American  Government  and  Politics 

examinations,  are  assigned  to  rank  in  the  lower  ranges  of  the 
naval  service  on  a  basis  of  their  merits.^ 

Army  and  navy  officers  are  appointed  by  the  President  and 
Senate  —  subject  to  the  constitutional  limitation  reserving  the 
appointment  of  militia  officers  to  the  states.  In  time  of  war 
it  has  been  impossible  to  secure  enough  army  officers  from 
West  Point  and  the  government  has  been  compelled  to  call 
men  from  civil  life  or  from  the  ranks  to  fill  high  places.  It  has 
been  provided  by  law  that  in  time  of  peace  army  and  navy 
officers  may  be  remo^^ed  only  by  court-martial;  but  in  time  of 
war  the  President  may  remove  summarily.  Provision  is  also 
made  by  law  for  retirement  and  promotion  subject  to  a  certain 
presidential  discretion. 

The  Conduct  of  Warfare 

As  we  have  seen,  the  command  of  the  army  and  navy  of  the 
United  States  is  vested  in  the  President.^  As  commander-in- 
chief  he  may  dispose  of  the  armed  forces  on  land  and  sea  in  time 
of  war  and  peace;  he  may  supervise  the  execution  of  the  military 
law  in  the  government  of  the  troops;  and  when  Congress  has 
declared  war,  or  the  United  States  has  been  invaded,  he  may 
employ  the  soldiers  and  direct  their  operations,  subject  to  the 
rules  of  that  branch  of  international  law  known  as  the  law  of  war. 

The  actual  conduct  of  war,  of  course,  varies  according  to  cir- 
cumstances, but  the  general  principles  may  be  illustrated  by 
reference  to  the  practice  during  the  recent  war  with  Spain.  On 
April  20,  1898,  Congress  passed  a  joint  resolution  demanding 
that  the  Spanish  government  relinquish  its  authority  in  Cuba, 
and  directed  the  President  to  use  our  military  and  naval  forces 
and  to  call  into  service  the  militia  to  such  an  extent  as  might 
be  necessary  to  carry  the  resolution  into  effect.  On  April  22, 
Congress  enacted  a  law  providing  for  the  temporary  increase 
of  the  mihtary  force  and  authorizing  the  President  to  call  for 
volunteers;  on  the  same  day  Mr.  McKinley,  acting  under  the 
joint  resolution  of  April  20,  established  a  blockade  over  certain 
Cuban  ports,^  the  American  fleet  having  already  been  ordered 
to  Havana.     The  next  day,  April  23,  the  President  issued  his 

'  There  is  a  Naval  War  College  at  Newport  and  an  Army  War  College  at 
Washington  at  which  selected  officers  study  special  war  problems. 

^  Above,  chap.  x.  ^  Readings,  p.  312. 


National  Defence 


351 


call  for  125,000  volunteers;^  and  two  days  later  Congress  passed 
an  act  declaring  that  a  state  of  war  had  existed  since  April  21 
between  the  United  States  and  the  Kingdom  of  Spain. ^ 

The  organization  of  the  army  and  navy  for  actual  service 
began  at  once.  The  President,  in  consultation  with  the  Secre- 
taries of  War  and  the  Navy  and  other  mihtary  experts,  completed 
the  selection  of  the  commanding  officers.^  Troops  were  con- 
centrated at  southern  ports,  preparatory  to  their  transportation 
to  Cuba,  and  the  commissary-general,  acting  through  his  agents 
in  the  great  cities,  began  to  purchase  suppHes  and  rush  them 
to  the  points  where  the  troops  were  being  mobilized.  Of  course, 
some  of  this  work  had  been  done  in  advance;  the  regular  army 
had  been  concentrated  in  southern  camps  and  overhauled  in 
anticipation  of  the  war  and  provision  had  been  made  in  the  War 
Department  for  the  selection  of  officers. 

There  were,  however,  great  confusion,  waste,  and  mismanage- 
ment in  the  preparation  for  the  war  and  in  equipping  and  trans- 
porting the  soldiers.  Indeed,  the  loss  during  the  Spanish  War 
was  not  on  the  field  of  battle,  but  in  the  camps,  where  the  soldiers 
were  poorly  cared  for  and  badly  fed.  Our  experience  on  this 
occasion  was,  in  fact,  the  chief  cause  of  the  reform  which  followed 
this  war. 

While  the  troops  were  being  organized  and  prepared  for  war. 
Congress  was  busy  with  revenue  measures  to  meet  the  new 
charges.  It  at  once  appropriated  $50,000,000  and  empowered 
the  President,  without  restriction,  to  use  the  entire  amount  for  na- 
tional defence.  Later  on,  June  13,  an  issue  of  $200,000,000  worth 
of  three  per  cent  bonds  was  authorized.  The  tax  on  tobacco  and 
fermented  liquors  was  greatly  increased;  "special  taxes  were 
laid  upon  banks,  brokers,  proprietors  of  theatres,  bowling  alleys, 
bilUard  and  pool  rooms,  and  amusement  places  in  general. 
Stamp  taxes  were  imposed  upon  a  great  variety  of  commercial 
transactions  involving  the  use  of  documents,  as  the  issue  or 
sale  of  incorporation  securities;  upon  bank  checks,  bills  of  ex- 
change, drafts,  etc. ;  upon  express  and  freight  receipts;  telephone 
and  telegraph  messages,  insurance  policies,  and  many  other 
business  operations  in  daily  use.     Duties  collected  through  the 

*  Readings,  p.  310.  ^  Ibui.y  p.  310. 

'  Senators  Hanna  and  Jones,  as  chairmen  of  the  national  committees  of  the 
two  great  political  parties,  exercised  great  weight  in  the  selection  of  officers. 


352  American  Government  and  Politics 

use  of  stamps  were  laid  upon  patent  and  proprietary  medicines 
and  toilet  articles,  chewing  gum,  and  wines;  and  an  excise  tax 
was  imposed  upon  firms  engaged  in  refining  sugar  or  petroleum. 
A  novelty  in  federal  finance  was  a  tax  on  legacies  ranging  from 
three-quarters  of  one  per  cent  on  direct  heirs  to  five  per  cent  on 
distant  relatives  and  strangers,  with  a  progressive  increase  in 
the  rates  as  the  estates  increased  in  size,  to  a  maximum  of  fifteen 
per  cent."  ^ 

The  actual  direction  of  war  is  obviously  difficult  to  describe. 
The  power  of  direction  is,  of  course,  vested  in  the  President;  but 
the  extent  to  which  he  may  use  it  to  control  not  only  the  general 
but  the  minute  movements  of  the  army  and  navy  depends  upon 
many  things:  the  character  of  the  theatre  of  war,  the  facility  of 
communication,  the  confidence  of  the  President  in  his  own  mili- 
tary ability,  and  the  regard  which  he  has  for  the  abilities  of  the 
officers  immediately  under  his  command.  He  could,  of  course, 
take  the  field  himself  if  he  saw  fit. 

During  the  Spanish- American  War,  President  McKinley,  the 
Secretary  of  War,  and  the  Secretary  of  the  Navy  sat  together  in 
what  is  known  as  the  War  Room  at  the  White  House,  which  was 
connected  with  the  scenes  of  action  by  the  most  modern  means  of 
communication;  and  from  time  to  time  they  sent  out  general 
instructions,  and  detailed  orders  to  commanding  officers.^ 

We  may  say,  therefore,  that  the  President  and  his  immediate 
advisers  in  Washington  sketch  the  general  plans  of  campaign; 
supervise  their  execution;  make  changes  and  issue  new  directions 
from  time  to  time,  always  cooperating  with  the  officers  at  the 
front,  trusting  more  or  less  to  their  use  of  discretion  amid  the  exi- 
gencies of  battle.^  Under  the  law  estabHshing  the  General  Staff, 
described  above,  the  President  will  now  have  the  advice  of  an  expert 
body  closely  in  touch  with  the  army  and  at  the  same  time  initiated 
in  the  practical  problems  of  civil  administration  connected  with 
the  actual  employment  of  the  army. 

The  Rights  of  Citizens  in  Time  of  War 

The  rights  of  the  enemy  in  time  of  war  are  deduced,  of  course, 
from  the  principles  of  international  law;  but  the  rights  of  Ameri- 

*  Dewey,  Financial  History  of  the  United  States,  p.  466. 

'See  Readings,  p.  313. 

'  For  actual  illustrations,  see  Readings,  pp.  315  ff. 


National  Defence  353 

:an  citizens  must  be  determined  according  to  the  Constitution  of 
the  United  States.  During  the  Civil  War  a  serious  problem  arose 
IS  to  the  extent  of  the  power  of  the  President  as  commander-in- 
:hief  over  the  persons  and  property  of  American  citizens,  not 
3nly  near  the  seat  of  war,  but  even  at  a  great  distance.  Has  the 
President  the  right  to  arrest  citizens  in  loyal  states  on  the  charge 
3f  giving  aid  or  comfort  to  the  enemy  of  the  United  States? 
Can  he  suspend,  without  the  sanction  of  Congress,  the  writ  of 
[labeas  corpus  as  to  persons  under  mihtary  arrest,  thus  preventing 
them  from  carrying  their  cases  into  the  ordinary  civil  tribunals? 
!\re  persons  so  held  under  mihtary  arrest  entitled  to  jury  trial? 
rhese  and  many  similar  questions  were  raised,  and  bitter  feehng 
svas  manifested  against  President  Lincoln,  in  many  quarters, 
for  what  was  regarded  as  high-handed  and  arbitrary  action  in  ar- 
resting, by  mihtary  force,  large  numbers  of  men  throughout  the 
N^orth  who  were  suspected  of  giving  aid  and  encouragement  to  the 
Confederacy. 

To  those  who  complained  against  this  poUcy,  President  Lin- 
coln responded:  "Thoroughly  imbued  with  a  reverence  for  the 
guaranteed  rights  of  individuals,  I  was  slow  to  adopt  the  strong 
measures  which  by  degrees  I  have  been  forced  to  regard  as 
being  within  the  exceptions  of  the  Constitution  and  as  indispen- 
sable to  the  pubHc  safety.  Nothing  is  better  known  to  history 
than  that  courts  of  justice  are  utterly  incompetent  to  such  cases. 
Civil  courts  are  organized  chiefly  for  trials  of  individuals,  or  at 
most  a  few  individuals  acting  in  concert  —  and  this  in  quiet 
times  and  on  charges  of  crimes  well  defined  in  the  law.  ...  He 
who  dissuades  one  man  from  volunteering,  or  induces  one  sol- 
dier to  desert,  weakens  the  Union  cause  as  much  as  he  who  kills 
a  Union  soldier  in  battle.  Yet  this  dissuasion  or  inducement 
may  be  so  conducted  as  to  be  no  defined  crime  of  which  any  civil 
court  would  take  cognizance."  ^ 

The  question  as  to  the  extent  of  the  President's  war  power  over 
American  citizens  was  brought  before  the  Supreme  Court  in  the 
case  of  Ex  parte  Milhgan,^  and  it  was  held  that,  in  time  of  civil 
war  when  courts  are  actually  closed  by  foreign  invasion  and  it 
is  impossible  to  administer  criminal  justice  according  to  law,  the 
mihtary  authority  has  the  right  to  rule  by  martial  law  until  the 

'  Nicolay  and  Hay,  Complete  Works  of  A.  Lincoln,  Vol.  VIII,  pp.  303,  309. 
'  4  Wallace,  2, 

2A 


354  American  Government  and  Politics 

laws  can  have  their  free  course  again.  But,  continued  the  Court, 
as  the  necessity  creates  the  rule,  so  it  Umits  the  duration  — 
martial  rule  can  never  be  maintained  where  the  courts  are  open 
and  in  the  proper  and  undisturbed  exercise  of  their  jurisdiction, 
and  it  is  confined  to  the  locaUty  of  actual  war.  The  doctrine 
thus  announced  by  the  Court  is  largely  an  academic  one,  for 
the  President,  having  possession  of  the  mihtary  power,  can  readily 
close  the  courts  in  any  district  and  thus  disturb  "the  free  course 
of  law";  and  as  a  matter  of  fact,  in  time  of  war,  a  practically 
absolute  power  must  be  vested  in  the  commander-in-chief. 

The  Pension  System 

No  country  in  the  world  has  been  more  liberal  in  the  provision 
of  pensions  for  soldiers  and  sailors  and  those  dependent  upon 
them  than  the  United  States.  A  pension  system  was  estabUshed 
as  early  as  1776.  Following  every  war  there  is  a  new  pension  law, 
or  rather  a  series  of  pension  laws,  making  provision  for  those  who 
have  served  their  country;  and  payments  for  previous  services 
are  constantly  being  made  more  liberal.  In  1905,  the  roll  of 
pensioners  reached  1,004,196,  the  largest  in  the  history  of  our 
country;  and  on  June  30,  1908,  the  number  stood  at  951,867. 
By  the  act  of  March  4,  1907,  Congress  appropriated  $145,000,000 
for  pensions,  and  this  was  supplemented  about  a  year  later  by  a 
deficiency  appropriation  of  $10,000,000  more.  The  total  amount 
actually  disbursed  in  pensions  for  the  fiscal  year  ending  June  30, 
1908,  was  over  $153,000,000. 

It  is  not  only  the  soldiers  who  have  seen  actual  service  that 
are  pensioned.  Many  widows,  children  under  the  age  of  sixteen 
years,  and  helpless  minors  are  provided  for,  and  state  and  na- 
tional homes  are  established  for  the  disabled  and  indigent.  It 
was  not  until  November  11,  1906,  that  the  last  surviving  widow 
pensioner  of  the  Revolutionary  War  died  and  two  daughters  of 
soldiers  in  that  war  were  still  on  the  roll  in  1908.  The  last  pen- 
sioned soldier  of  the  War  of  181 2  died  in  1905,  but  the  roll  of 
that  war  still  contains  over  400  widows.  On  June  30, 1908,  there 
were  620,985  survivors  of  the  Civil  War  on  the  pension  roll. 

The  administration  of  the  pensions  is  in  charge  of  a  commis- 
sioner in  the  Department  of  the  Interior. 


National  Defence  355 


The  Cost  of  War  * 

There  is  a  strong  tradition  in  the  United  States  that  we  are  pre- 
eminently a  peaceful  people  giving  little  attention  to  warlike 
preparations;  and  we  generally  point  with  pity  to  the  nations  of 
Europe  staggering  under  their  enormous  military  burdens.  It  is 
interesting  to  note,  however,  that  on  comparing  the  total  receipts  of 
Great  Britain,  Germany,  France,  and  the  United  States  with  their 
total  expenditures  for  the  maintenance  of  military  establishments 
there  is  relatively  little  difference.^  During  the  fiscal  year  1908, 
the  United  States  spent  for  army,  navy,  and  fortifications  no 
less  than  $204,122,855.57,  or  36.5  per  cent  of  the  total  revenue, 
exclusive  of  postal  receipts  (because  the  revenues  and  expenditures 
in  that  department  constitute  a  balanced  account).  During  the 
same  year  also  we  spent  $180,678,204,  or  about  31  per  cent  of  our 
total  revenue  for  pensions,  interest,^  and  other  charges  incurred 
by  past  wars.  Taking  the  daily  statement  issued  by  the  Treas- 
ury Department  on  April  30,  1909,  we  find  an  expenditure  of 
41  per  cent  of  all  the  revenues  of  the  fiscal  year  up  to  that  day 
for  the  army,  navy,  and  fortifications — that  is,  in  preparation  for 
war  —  and  31  per  cent  of  all  the  revenue  on  account  of  past  wars, 
making  a  total  expenditure  of  72  per  cent  of  all  the  federal  reve- 
nues thus  collected,  either  on  account  of  past  wars  or  in  prepara- 
tion for  war. 

"  The  fact,"  exclaims  Mr.  Tawney,  chairman  of  the  committee  of  ap- 
propriations in  the  House,  "  that  we  are  expending,  during  this  fiscal 
year,  72  per  cent  of  our  aggregate  revenue  in  preparing  for  war  and  on 
account  of  past  wars,  leaving  only  28  per  cent  of  our  revenue  avail- 
able to  meet  all  other  governmental  expenditures,  including  internal 
improvements,  the  erection  of  public  buildings,  the  improvement  of 
rivers  and  harbors,  and  the  conservation  of  our  natural  resources,  is  to 
my  mind  appalling.  It  should  arrest  the  attention  of  the  American 
people  and  not  only  cause  them  to  demand  a  decrease  in  these  unneces- 
sary war  expenditures,  but  also  prompt  them  to  aid  in  every  way  pos- 
sible in  the  creation  of  a  public  sentiment  that  would  favor  the  organi- 
zation of  an  international  federation  whose  decisions  and  action  in  the 

'  For  the  American  theory  of  national  defence,  Readings,  p.  320.  For 
the  modem  peace  movement,  above,  p.  339. 

^  Congressional  Record,  Vol.  XL,  part  8,  p.  7928;  Reinsch,  Readings,  p.  313. 
^  On  the  war  debt. 


35^  American  Government  and  Politics 

peaceful  settlement  of  controversies  between  nations  would  be  recog- 
nized and  accepted  as  the  final  determination  thereof.  If  this  were 
done  it  would  not  necessarily  mean  the  entire  abandonment  of  armies 
and  navies,  but  it  would  so  far  remove  the  possibiUty  of  international 
wars  as  to  make  unnecessary  the  expenditure  of  the  stupendous  sums 
which  are  now  being  collected  from  the  people  in  the  form  of  taxes  and 
expended  for  the  purpose  of  maintaining  armed  peace.  The  money 
expended  for  this  purpose  is  not  the  only  measure  of  the  cost  of  armed 
peace.  Think  for  a  moment  of  what  the  American  people  have  lost 
during  the  past  eight  years,  in  consequence  of  the  increased  expendi- 
ture of  more  than  a  biUion  dollars  during  that  time  for  the  purpose  of 
preparing  for  war  in  order  that  war  may  be  prevented." 

It  is  important  to  note  that  we  are  not  only  spending  three- 
fourths  of  our  total  revenue  in  the  payment  for  past  wars  and  for 
warlike  preparations,  but  also  that  there  is  a  strong  tendency  to 
increase  the  relative  amount  voted  for  military  purposes.  Under 
the  second  adminstration  of  President  Roosevelt,  the  per  capita 
appropriation  for  the  army  was  $3.66,  —  more  than  two  and  a 
half  times  the  amount  appropriated  under  Mr.  Cleveland's  ad- 
ministration. Under  Mr.  Roosevelt,  the  naval  appropriations, 
measured  in  relation  to  the  population,  were  three  times  as  great 
as  under  Mr.  Cleveland;  and  at  the  same  time  there  was  an 
increase  of  fifty  per  cent  in  the  expenditure  for  fortifications. 

This  increase  in  appropriations  for  military  purposes  has  been 
especially  rapid  since  the  Spanish  War.  The  average  annual 
army  appropriations  for  the  eight  years  just  preceding  the  Spanish 
War  amounted  to  $24,000,000;  for  each  of  the  eight  years  ending 
in  the  fiscal  year  of  19 10,  the  average  amount  totals  the  enormous 
sum  of  $83,000,000.  During  this  same  period  the  annual  average 
appropriations  for  the  navy  have  risen  fr5m  $27,500,000  to  more 
than  $102,400,000. 

In  defence  of  this  rapid  increase  in  expenditures  for  warlike 
preparations,  it  is  urged  that  special  precautions  must  be  taken  to 
defend  our  new  insular  possessions  and  to  protect  our  world-wide 
commerce.  It  is  also  contended  that  as  long  as  the  great  nations 
of  Europe,  with  whom  we  are  now  in  open  commercial  competition 
in  the  world's  markets,  steadily  increase  their  military  and  naval 
expenditures  we  cannot  allow  our  army  and  navy  to  fall  behind. 
In  his  message  of  December  3,  1907,  President  Roosevelt  declared 
that  inasmuch  as  the  Hague  conference  had  failed  to  take  up  the 


National  Defence 


357 


question  of  limiting  armaments,  and  inasmuch  as  it  was  hopeless 
to  try  to  devise  any  plan  which  might  have  secured  the  assent  of 
the  nations  gathered  at  the  Hague,  "it  was  folly  for  this  nation  to 
base  any  hope  of  securing  peace  on  any  international  agreement 
as  to  the  Hmitation  of  armaments.  Such  being  the  fact  it  would  be 
most  unwise  for  us  to  stop  the  upbuilding  of  our  navy.  To  build 
one  battleship  of  the  best  and  most  advanced  type  a  year  would 
barely  keep  our  fleet  up  to  its  present  force.  This  is  not  enough. 
In  my  judgment  we  should  this  year  provide  for  four  battleships." 
In  response  to  this  appeal  Congress  voted  the  construction  of  two 
battle  ships. 

Those  who  urge  larger  mihtary  preparations  also  contend  that 
the  neglect  of  our  army  was  responsible  for  the  serious  loss 
incurred  by  inefficient  administration  and  inadequate  services 
during  the  Spanish  War.  In  the  message  quoted  above  President 
Roosevelt  devoted  special  attention  to  this  question,  pointing  out 
that  in  every  foreign  war  which  we  have  waged  an  enormous  cost 
in  men  and  money  could  have  been  avoided,  if  in  time  of  peace  we 
had  taken  wise  precautions  to  maintain  the  regular  army  at  a  high 
standard  of  efficiency. 


CHAPTER   XVIII 


TAXATION  AND  FINANCE 


The  Power  of  Congress  to  Tax  ^ 

Under  the  Constitution  Congress  has  a  general  power  to  lay  and 
collect  taxes,  duties,  imposts,  and  excises.  Subject  to  certain  rules 
which  we  shall  consider  later,  there  is  no  limit  on  the  amount  of 
taxes  Congress  may  lay.  The  Chief  Justice  of  the  Supreme  Court, 
in  speaking  of  a  tax  which  was  so  excessive  as  to  impair  the  value 
of  the  franchises  of  state  banks,  said  that  it  was  not  within  the  prov- 
ince of  the  judiciary  to  prescribe  to  the  legislative  department  of 
the  government  limitations  upon  the  exercise  of  its  acknowledged 
powers.^  If  the  power  to  tax  is  exercised  oppressively,  he  declared, 
the  remedy  for  the  wrong  rests  with  the  people  who  choose  the 
legislature. 

1.  Some  of  the  restrictions  on  the  exercise  of  this  taxing  power 
are  expressly  laid  down  in  the  Constitution.  It  is  provided  in 
that  instrument  that  all  duties,  imposts,  and  excises  shall  be  uni- 
form throughout  the  United  States;  and  under  an  interpretation 
of  the  Supreme  Court,  a  uniform  tax  is  one  which  falls  with  the 
same  weight  upon  the  same  object  wherever  found  within  the 
United  States.  For  example.  Congress  once  laid  a  duty  of 
fifty  cents  on  every  passenger  coming  from  foreign  countries 
into  the  United  States,  and  this  tax  was  held  to  be  uniform, 
although  it  was  levied  principally  at  a  few  ports.  Again,  an 
inheritance  tax  is  uniform  ^  when  it  is  imposed  equally  upon  all 
inheritances  of  the  same  amount  and  character,  though  it  may  so 
happen  that  the  taxable  inheritances  may  occur  in  only  a  few 
states  of  the  Union  during  the  existence  of  the  law. 

2.  The  second  express  Hmitation  on  the  taxing  power  of  Con- 
gress is  that  direct  taxes  shall  be  apportioned  among  the  several 
states  according  to  their  respective  numbers."* 

*  For  the  social  implications  of  this  power,  see  Readings,  pp.  283  and  331. 

^  Veazie  Bank  v.  Fenno,  8  Wallace,  533. 

^Readings,  p.  323.  *  For  an  example,  Readings,  p.  327. 

358 


Taxation  and  Finance  359 

3.  The  Constitution  also  provides  that  Congress  shall  not  lay 
a  duty  or  tax  on  articles  exported  from  any  state,  and  that,  in  the 
regulation  of  commerce  and  revenue,  no  preference  shall  be  given 
to  the  ports  of  one  state  over  those  of  another.  To  prevent  dis- 
crimination between  states,  it  is  further  stipulated  that  vessels 
bound  to  or  from  one  state  shall  not  be  obhged  to  enter,  clear,  or 
pay  duties  in  the  ports  of  another. 

4.  In  addition  to  the  express  Umitations  ^  laid  down  in  the  Con- 
stitution, there  is  an  important  imphed  restriction  on  the  taxing 
power.  Congress  cannot  tax  the  instrumentalities  or  the  property 
of  any  state^"  This  doctrine  has  been  applied  in  a  number  of 
cases.  For  example,  during  the  Civil  War,  Congress  levied  a 
tax  on  the  gains,  profits,  and  income  of  every  person  residing  in  the 
United  States  ;  a  judge  in  Massachusetts  refused  to  pay  the  tax 
upon  his  income  which  was  derived  from  the  commonwealth,  and 
the  Supreme  Court  of  the  United  States  upheld  him  in  his  refusal, 
declaring  that  the  federal  government  was  thus  taxing  an  instru- 
mentaHty  of  a  state. 

Broadly  speaking,  there  are  two  forms  of  taxes  in  the  United 
States,  direct  and  indirect;  and  it  is  always  necessary  to  decide 
into  which  of  these  two  categories  any  tax  about  to  be  laid  by 
Congress  falls,  and,  therefore,  whether  the  rule  of  apportionment 
according  to  population  or  the  rule  of  uniformity  shall  apply. 

I.  During  the  early  years  of  the  federal  government  it  was 
generally  understood  that  there  were  two  kinds  of  direct  taxes  — 
a  capitation  or  poll-tax  and  a  tax  on  land.^  It  is  now  held 
by  the  Supreme  Court,  however,  that  taxes  upon  income  from  real 
and  personal  property  are  Hkewise  direct,  and  therefore  constitu- 

*  The  taxing  power  of  the  federal  government  must  be  exercised  according 
to  due  process  of  law.     See  above,  p.  151. 

^  See  McCuUoch  v.  Maryland,  4  Wheaton,  316. 

3  In  practice  the  federal  government  has  imposed,  as  avowedly  direct, 
taxes  on  real  estate  and  slaves.  For  example,  in  1 798,  a  direct  tax  was  im- 
posed on  real  estate,  and  a  capitation  tax  was  laid  on  slaves;  and  in  a  few 
other  instances  this  precedent  was  followed.  In  1861,  under  the  necessity 
of  raising  funds  to  carry  on  the  Civil  War,  the  federal  government  voted  a  tax 
of  twenty  million  dollars  to  fall  on  lands  and  improvements,  and  divided  this 
amount  among  the  states  m  proportion  to  their  respective  populations  as 
shown  by  the  census.  Some  of  the  states  assumed  the  entire  quota  allotted 
to  them,  and  after  the  war  the  amounts  collected  were  refunded  to  the  states. 
For  this  law,  see  Readings,  p.  327. 


360  American  Government  and  Politics 

tional  only  when  apportioned  among  the  states  according  to  their 
populations.  Since  the  incomes  of  private  persons  within  the 
respective  commonwealths  have  no  necessary  relation  to  the  num- 
ber of  inhabitants,  it  would  be  obviously  unjust  to  apply  the 
rule  of  apportionment.^  On  account  of  the  difficulties  of  as- 
sessing direct  taxes  and  apportioning  them  among  the  states, 
and  the  resulting  injustice,  the  constitutional  limitation  is  al- 
most a  prohibition. 

II.  Indirect  taxes,  which  are  subject  only  to  the  rule  of  uni- 
formity, may  be  taken  to  include  excise  taxes  upon  commodities, 
such  as  whiskey  and  tobacco;  customs  duties  imposed  upon  goods 
coming  into  the  United  States  from  other  countries;  taxes  upon 
inheritances;  ^  license  taxes  on  occupations;  duties  on  the  sale 
of  commodities,  such,  for  example,  as  the  stamp  tax  laid  on  proprie- 
tary articles  during  the  Spanish  War;  ^  stamp  taxes  such  as  those 
on  checks,  mortgages,  and  other  papers;  and,  apparently,  taxes 
on  incomes  not  derived  from  real  or  personal  property. 

Revenues  and  Revenue  Bills 

Except  in  time  of  war  or  shortage  of  revenue  it  has  been  the 
general  practice  of  the  federal  government  to  rely  upon  indirect 
taxation  as  its  prime  source  of  revenue^  It  was  the  intention  of 
the  Fathers  that  indirect  taxes  should  be  the  chief  resort  of  the 
central  government.  In  common  with  all  statesmen  they  recog- 
nized the  natural  dishke  of  the  people  for  any  form  of  tax  which 
must  be  paid  directly  out  of  their  own  pockets  in  lump  sums  to 
the  government.     Not  only  is  a  direct  tax  difficult  to  collect  on 

*  During  the  Civil  War  a  federal  tax  was  laid  upon  income,  gains,  and 
profits  by  the  year,  and  in  Springer  v.  United  States  (102  U.  S.  R.,  586)  the  Su- 
preme Court  held  that  this  was  an  indirect  tax,  and  therefore  did  not  have  to 
be  apportioned  according  to  population.  The  Court  said  in  this  case:  "Our 
conclusions  are  that  direct  taxes  within  the  meaning  of  the  Constitution  are 
only  capitation  taxes  as  expressed  in  that  instrument  and  taxes  on  real 
estate;  and  that  the  tax,  of  which  the  plaintiff  in  error  complains,  is  within 
the  category  of  an  excise  or  duty."  Upon  reexamination  of  the  question  in 
connection  with  the  income-tax  law  of  1894,  the  Court  maintained  that  a  tax 
upon  incomes  from  land  is  as  much  a  direct  tax  as  if  levied  upon  the  land 
itself  at  so  much  an  acre,  or  according  to  its  valuation.  Readings,  p.  328. 
In  1909,  Congress  passed  and  referred  to  the  state  legislatures  an  amendment 
to  the  federal  Constitution  authorizing  Congress  to  impose  an  income-tax 
without  apportionment.     See  above,  p.  71. 

'  Readings,  p.  323.  3  gee  above,  p.  352. 


Taxation  and  Finance  361 

account  of  this  natural  opposition  to  it;  it  is  expensive  to  ad- 
minister owing  to  the  necessity  of  repeated  valuations  of  the 
property  on  which  it  falls  and  to  the  numerous  operations  required 
in  laying  and  collecting  it. 

An  indirect  tax,  on  the  other  hand,  has  the  advantage  of  great 
simplicity.  It  falls  in  small  amounts  upon  each  article  of  con- 
sumption, and  it  is  easy  to  lay  because  it  is  imposed  upon  the 
same  articles  wherever  they  are  found. 

Accordingly,  the  United  States  now  derives  its  revenues  from 
two  prime  sources,*  customs  duties  laid  upon  imports  coming  from 
foreign  countries,  and  internal  revenue  or  excise  taxes  laid  on 
spirits  and  tobacco.  Of  the  total  gross  receipts  of  the  United 
States  in  1907,  amounting  to  $663,000,000  in  round  numbers, 
$332,000,000  was  derived  from  customs  and  $269,000,000  from 
internal  revenue,  the  remainder  coming  from  the  sale  of  pubUc 
lands  and  miscellaneous  sources.^ 

The  Constitution  definitely  provides  that  all  bills  for  raising 
revenue  shall  originate  in  the  House  of  Representatives,  but  au- 
thorizes the  Senate  to  propose  or  concur  in  amendments  as  in  the 
case  of  other  bills.  It  was  the  purpose  of  the  framers  of  the  Con- 
stitution to  vest  the  power  of  imposing  taxes  in  the  hands  of  that 
branch  of  the  national  legislature  which  was  nearer  the  people 
on  whom  the  burden  must  fall.  * '  The  House  of  Representatives, ' ' 
says  The  Federalist,  "holds  the  purse,  —  that  powerful  instru- 
ment by  which  we  behold  in  the  history  of  the  British  Constitu- 
tion an  infant  and  humble  representation  of  the  people  gradually 
enlarging  the  sphere  of  its  activity  and  importance  and  finally 
reducing  as  far  as  it  seems  to  have  wished  all  the  overgrown 
prerogatives  of  the  other  branches  of  the  government.  This 
power  over  the  purse  may,  in  fact,  be  regarded  as  the  most  complete 
and  effectual  weapon  with  which  any  Constitution  can  arm  the 
immediate  representatives  of  the  people,  for  obtaining  a  redress 
of  every  grievance  and  for  carrying  into  effect  every  just  and  salu- 
tary measure."  ^ 

In  spite  of  this  confident  prediction,  however,  the  influence  of 

'  A  departure  was  made  in  1909  when  a  tax  of  one  per  cent  was  imposed 
upon  the  net  income,  over  and  above  $5000,  of  corporations,  joint  stock 
companies,  and  associations.  See  the  discussion  of  this  law  by  Professor 
Goodnow,  in  The  Columbia  Law  Review,  December,  1909. 

=*See  table  below,  p.  372.  'No.  LVIII. 


362  American  Government  and  Politics 

the  Senate  in  shaping  revenue  legislation  has  been  steadily  on  the 
increase,  until  it  now  frankly  assumes,  under  its  power  to  make 
amendments,  what  is  for  practical  purposes  the  right  of  initiating 
revenue  measures.  For  example,  in  187 1,  the  House  passed  an 
act  repeaUng  the  existing  duties  on  tea  and  coffee  —  a  brief 
measure  only  a  few  Hues  long;  and  the  Senate  substituted  for 
this  proposal  of  a  slight  change,  "an  act  to  decrease  existing 
taxes, "  designed  to  bring  about  a  general  revision  of  the  laws 
imposing  duties  and  internal  taxes  —  in  all  a  measure  of  some 
twenty  printed  pages.  The  House  protested  against  this  action 
on  the  part  of  the  Senate,  declaring  it  to  be  in  conflict  with  the 
true  intention  and  purpose  of  the  clause  of  the  Constitution 
which  requires  revenue  bills  to  originate  in  the  lower  branch  of  the 
legislature.  During  the  debate  on  the  subject  in  the  House, 
Mr.  Garfield  said:  "It  is  clear  to  my  mind  that  the  Senate's 
power  to  amend  is  limited  to  the  subject-matter  of  the  bill.  That 
limit  is  natural,  is  definite,  and  can  be  clearly  shown.  If  there 
had  been  no  precedent  in  the  case,  I  should  say  that  a  House  bill 
relating  solely  to  revenue  on  salt  could  not  be  amended  by  adding 
to  it  clauses  raising  revenue  on  textile  fabrics,  but  that  all  the 
amendments  of  the  Senate  should  relate  to  the  duty  on  salt. 
To  admit  that  the  Senate  can  take  a  House  bill  consisting  of  two 
lines,  relating  specifically  and  solely  to  a  single  article,  and  can 
graft  upon  that  bill  in  the  name  of  an  amendment  a  whole  system 
of  tariff  and  internal  taxation,  is  to  say  that  they  may  exploit  all 
the  meaning  out  of  the  clause  of  the  Constitution  which  we  are 
considering,  and  may  rob  the  House  of  the  last  vestige  of  its 
rights  under  that  clause."  In  spite  of  the  protest  on  the  part  of 
the  House,  the  Senate  was  able  to  force  the  adoption  of  a  consider- 
able portion  of  its  plan  of  revision. 

Again  in  1894,  the  Wilson  tariff  bill  as  it  came  from  the  House 
of  Representatives  was  sadly  mutilated  in  the  Senate.  In  fact, 
"its  revenue  reform  principles  were  hardly  recognizable";  but  in 
the  conference  committee  the  House  of  Representatives  was 
forced  to  yield  on  almost  all  the  points.  Again,  in  1909,  when  the 
Payne  tariff  bill  came  from  the  House  of  Representatives,  it  was 
referred  to  the  finance  committee  of  the  Senate,  of  which  Mr. 
Aldrich  was  chairman,  and  when  reported  back  from  that  com- 
mittee it  was  in  many  important  respects  a  new  bill.^     As  it 

'  In  fact  the  Senate  Committee  had  virtually  prepared  its  own  bill  before 
the  House  bill  was  referred  to  it. 


Taxation  and  Finance  363 

finally  passed  the  Senate  it  contained  a  number  of  radical  depar- 
tures from  the  provisions  of  the  House  bill  and  in  spite  of  the  inter- 
vention of  President  Taft  many  of  them  were  adopted  during  the 
sessions  of  the  conference  committee.  It  is  generally  beheved  that 
Mr.  Aldrich  exerted  a  far  greater  influence  in  the  drafting  of  this 
revenue  measure  than  did  Mr.  Payne,  chairman  of  the  ways  and 
means  committee  in  the  House  of  Representatives. 

The  actual  work  of  preparing  revenue  bills  in  the  House  is 
assigned  to  the  committee  on  ways  and  means.  Tariff  measures 
are  drawn  up  by  the  members  of  the  committee  representing  the 
party  which  has  a  majority  in  the  House.  When  it  becomes 
apparent  that  the  temper  of  the  country  is  demanding  a  re- 
vision of  the  tariff,  the  House  of  Representatives  generally 
authorizes  the  committee  to  gather  information  preparatory 
to  the  adoption  of  the  new  schedules.  For  example,  in  the 
spring  of  1908,  the  committee  on  ways  and  means  was  author- 
ized, on  the  motion  of  its  chairman,  Mr.  Payne,  to  sit  during 
the  recess  of  Congress  and  hold  hearings  to  collect  information 
upon  which  to  base  a  revision  of  the  tariff;  and  at  the  same  time 
the  Senate  adopted  a  resolution  authorizing  its  finance  com- 
mittee to  secure  expert  assistance  in  making  tariff  investiga- 
tions both  before  and  after  the  introduction  of  the  tariff  bill  in 
the  House  of  Representatives. 

It  is  a  common  practice  for  the  committee  to  hold  many  sessions 
which  are  attended  by  the  representatives  of  the  various  industries 
of  the  nation  as  well  as  by  consumers  and  other  persons  interested 
in  the  tariff,  who  advance  their  respective  claims  for  protection 
or  for  reduction.'  When  the  majority  members  of  the  committee 
have  taken  all  the  evidence  that  they  desire  and  thoroughly 
considered  the  issues  involved,  they  draw  up  a  complete  bill 
which  is  sometimes  discussed  in  the  full  committee.  Inasmuch  as 
a  tariff  bill  is  always  a  poUtical  measure,  the  minority  members  on 
the  committee  are  generally  not  consulted  at  all,  and  may  in  fact 
know  nothing  about  the  exact  provisions  of  the  bill  until  it  is 
reported  to  the  House.     The  minority,  of  course,  may  present 

'  See  Readings,  p.  333,  for  the  interesting  extract  from  Mr.  Dingley's 
Memoirs,  describing  the  preparations  of  the  Dingley  bill.  The  hearings 
are  always  one-sided.  It  is  the  "  interests  "  who  prosecute  their  case  with 
great  zeal.  Few  consumers  have  the  personal  interest  or  knowledge  to 
make  their  appearance  before  the  committee  efifcctive. 


364  American  Government  and  Politics 

a  report  of  their  own  by  way  of  protest,  but  it  seldom  amounts 
to  anything. 

When  a  revenue  bill  is  reported  to  the  House  by  the  chairman 
of  the  committee  on  ways  and  means,  it  is  debated  in  the  com- 
mittee of  the  whole  on  the  state  of  the  Union.  The  discussion  at  • 
first  is  quite  general,  so  that  practically  every  member  who  has 
anything  to  say  about  the  proposed  measure  is  given  an  opportun- 
ity. The  general  debate  is  then  followed  by  a  debate  on  details 
under  the  five-minute  rule.  From  time  to  time  as  the  discussion 
proceeds,  the  committee  on  ways  and  means  will  report  changes, 
the  chairman  of  that  committee  as  an  astute  party  leader  being 
quick  to  perceive  the  points  on  which  it  is  expedient  and  necessary 
to  yield.  The  bill  as  modified  under  the  pressure  of  debate  is 
generally  passed  by  the  House  under  ''the  previous  question." 

When  the  measure  reaches  the  Senate,  it  is  promptly  referred 
to  the  committee  on  finance  which  has,  as  a  matter  of  fact,  been 
busy  on  its  own  bill  and  has  watched  with  close  scrutiny  the 
progress  of  the  discussion  in  the  House.  After  making  amend- 
ments or  substituting  practically  a  new  bill,  the  committee  makes 
its  report  to  the  Senate.  The  debate  in  that  body,  as  we  have 
seen,  is  unlimited;  and  the  tariff  measure  usually  receives  far 
more  penetrating  criticism  there  than  in  the  House, 

After  its  passage,  the  bill  purporting  to  be  the  original  measure 
with  Senate  amendments  is  returned  to  the  House,  which  promptly 
votes  not  to  concur  in  the  Senate  amendments  and  asks  for  a 
conference.  The  Speaker,  thereupon,  appoints  the  chairman  of 
the  committee  on  ways  and  means  and  some  other  members  to 
represent  the  House,  and  the  presiding  officer  of  the  Senate  selects 
the  chairman  of  the  committee  on  finance  and  certain  other 
members  to  represent  that  body.  The  conference  committee 
immediately  begins  a  series  of  sessions  which  always  end  in  a 
compromise,  the  Senate  receding  from  some  of  its  amendments 
and  the  House  yielding  on  others.  Sometimes  the  conference 
committee  takes  into  its  confidence  the  President,  whose  views 
as  party  leader  with  regard  to  the  tariff  cannot  be  neglected. 
As  is  well  known.  President  Taft  exerted  a  considerable  influence 
in  the  conference  committee  discussions  in  1909  which  led  to  an 
adjustment  of  the  differences  between  the  two  houses.  '  Through- 
out these  various  operations  on  the  bill,  it  must  be  remembered, 
many  provisions  are  framed  with  a  certain  knowledge  that  a 


Taxation  and  Finance  .  365 

)mpromise  will  ultimately  result.     A  compromise,  therefore, 

frequently  no  compromise.  When  the  conference  committee 
IS  come  to  an  agreement,  its  report  is  immediately  submitted 
)  the  House,  where  it  is  passed  without  amendment  and  then 
int  to  the  Senate,  where  it  is  likewise  speedily  accepted.  There- 
3on  the  bill  goes  to  the  President  for  his  signature. 

This  method  of  drafting  revenue  measures  is  attended  by  some 
;rious  drawbacks.  In  the  first  place,  no  man  or  group  of  men 
in  assume  full  responsibiUty  for  it.  The  President,  who  may 
ive  been  elected  on  a  platform  favoring  the  reduction  of  the 
iriff,  can  do  nothing  more  than  exert  such  influence  as  his  posi- 
on  and  party  leadership  may  give  him.  His  veto  of  a  tariff  bill 
ould  be  an  extremely  drastic  measure  of  control,  resulting  in 
reat  confusion  to  the  business  interests  awaiting  a  settlement. 
1  the  House,  the  chairman  of  the  committee  on  ways  and  means 
light  be  held  at  least  partially  responsible,  were  it  not  for  the 
LCt  that  the  Senate  has  such  an  unlimited  amending  power. 

In  actual  practice  the  most  important  points  of  contention  are 
jttled  in  the  conference  committee,  so  it  may  be  said  that  the  final 
ord  on  tariff  pohcy  and  revenue  measures  is  said  by  a  committee 
nknown  to  the  Constitution.  This  is  especially  true  because 
oth  houses  are  in  practice  constrained  to  accept  the  measure  as 
jported  from  this  committee,  fearing  to  reopen  a  long  and  tedious 
3bate  and  thus  delay  the  conclusion  of  the  matter  indefinitely, 
he  complete  bill  is,  therefore,  not  a  measure  which  has  received 
L  every  point  careful  consideration  by  a  responsible  legislature; 

is  a  series  of  compromises  rushed  through  in  its  final  form' 
ithout  dehberation.  The  great  defects  of  this  system  are  two: 
Dsence  of  precise  responsibiUty  land  a  tendency  to  cause  the  pro- 
ingation  of  an  outworn  tariff  poHcy  on  account  of  serious 
3stacles  in  the  way  of  a  speedy  and  effective  revision. 

Appropriation  Bills 

The  preparation  of  appropriation  bills,  jjnlike  the  preparation 
[  revenue  bills,  is  not  concentrated  in  the  hands  of  any  single 
)mmittee  in  the  House  of  Representatives,  but  is  intrusted  to 

number  of  committees.  In  the  beginning  of  our  history, 
^hen  expenditures  were  relatively  small,  they  were  practically  all 
repared  by  the  committee  on  ways  and  means,  thus  affording 


366  American  Government  and  Politics 

some  coordination  between  the  taxing  and  spending  branches  of 
the  government;  but  in  1865,  in  view  of  the  extraordinary  ex- 
penses incurred  by  the  war,  a  standing  committee  on  appropria- 
tions was  created.  On  the  ground  that  no  single  group  of  men 
can  give  a  speedy  and  careful  scrutiny  to  the  whole  range  of  ap- 
propriation measures,  one  class  of  appropriations  after  another 
has  been  taken  away  from  this  committee  and  intrusted  to  other 
committees  until,  as  a  result,  the  work  of  preparing  appropriations 
in  the  House  of  Representatives  is  broken  up  so  that  there  are 
now  no  less  than  fourteen  general  appropriation  bills  prepared 
by  seven  different  committees/ 

The  committee  on  appropriations  has  charge  of  the  legislative, 
executive,  and  judicial  bill,  the  sundry  civil.  District  of  Columbia, 
fortifications,  pension,  urgency  deficiency,  and  general  deficiency 
bills.  The  agricultural  bill  is  reported  by  the  committee  on 
agriculture;  the  army  bill  and  mihtary  academy  bill,  by  the  com- 
mittee on  mihtary  affairs;  the  naval  bill,  by  the  committee  on 
naval  affairs;  the  diplomatic  and  consular  bill,  by  the  committee 
on  foreign  affairs;  the  post-office  bill,  by  the  committee  on  the 
post-offices  and  post-roads;  the  Indian  bill,  by  the  committee  on 
Indian  affairs.  Each  of  these  appropriation  bills  must  be  pre- 
pared and  passed  annually,  for  a  general  appropriation  bill,  ex- 
cept in  the  matter  of  deficiency,  merely  provides  for  the  coming 
fiscal  year,  dating  from  July  first.  There  are,  in  addition, 
large  "  permanent "  appropriations  for  fortifications,  river  and 
harbor  improvements,  etc.,  which  are  paid  out  imder  a  general 
law  as  long  as  authorized. 

The  basis  for  appropriations  is  afforded  by  the  Book  of  Estimates 
transmitted  to  the  House  of  Representatives  by  the  Secretary  of 
the  Treasury.  This  bulky  volume  of  figures  embraces  the  esti- 
mates compiled  by  the  several  departments  which  are  supposed 
to  indicate  their  respective  needs.  These  estimates  are  placed 
in  the  hands  of  the  several  committees  having  charge  of  appro- 
priations, but  up  to  the  present  time  they  have  been  regarded  as 
Httle  more  than  useful  suggestions. 

In  the  preparation  of  their  bills  the  committee  on  appropria- 
tions and  the  other  committees  in  charge  of  appropriations  are 
really  compelled  to  work  more  or  less  bhndly.  Sometimes  they 
hold  extensive  hearings  endeavoring  to  get  a  complete  grasp  of 
^  For  the  character  of  an  appropriation  bill,  see  Readings,  p.  341. 


Taxation  and  Finance  367 

the  multitudinous  detailed  expenditures  for  which  they  must 
provide.^  But,  of  course,  it  is  impossible  for  the  several  com- 
mittees, in  the  time  at  their  disposal,  to  give  even  minor  matters 
the  amount  of  attention  demanded  by  sound  pubUc  economy. 
"The  machinery  provided  by  Congress,"  said  Mr.  Littauer  ^ 
in  1906,  "for  the  examination  of  accounts  and  expenditures,  of 
economy,  justness,  correctness  of  expenditures,  of  conformity  with 
appropriation  law,  of  retrenchment,  abolishment  of  useless  offices, 
of  the  reduction  and  increase  of  pay  of  officers  is  evidently  not 
in  working  order;  at  any  rate  some  gear  is  out  of  place  which 
needs  looking  after  by  the  engineers  in  charge.  Without  some 
aid  from  those  who  have  made  examinations  of  the  actual  conduct 
of  expenditures  in  the  bureaus,  your  committee  on  appropria- 
tions probes  away,  in  ascertaining  these  facts,  largely  in  the  datk. 
We  follow  up  leads  which  come  to  us  through  rumors  or  through 
our  own  experience  and  casual  observation.  Our  efforts  in 
forming  such  an  appropriation  bill  as  this  toward  getting  at  nec- 
essary facts  can  amount  to  nothing  but  a  scratch  on  the  surface, 
astounding  though  such  revelations  scratched  up  actually  are." 

Recognizing  the  uncertain  character  of  the  estimates  for  ap- 
propriations Congress,  by  a  law  passed  in  1909,  has  attempted  to 
throw  upon  the  President  the  burden  of  suggesting  ways  and 
means  for  balancing  accounts  which  will  compel  him  to  look  more 
sharply  into  the  cost  of  national  administration.^  Indeed  the 
first  signs  of  this  result  were  manifested  in  Mr.  Taft's  message  of 
December  7,  1909.  He  called  the  attention  of  Congress  to  the 
fact  that  the  estimates  submitted  had  been  cut  to  the  quick  and 
that,  in  order  to  bring  down  expenditures,  he  had  instituted  a 
searching  investigation  into  pubUc  business  methods  with  a  view 
to  a  reorganization  of  the  service  in  the  interests  of  economy  and 
efficiency. 

Not  only  do  the  respective  committees  on  appropriations  have 
great  difficulty  in  securing  proper  estimates  for  public  expendi- 
tures; they  are  under  constant  pressure  from  every  hand  to  in- 
crease the  amounts  which  they  recommend  to  the  House  for 
adoption.  Every  government  interest  is  represented  in  this 
pressure  for  larger  appropriations.  A  new  bureau  is  created  and 
it  inevitably  wishes  to  widen  the  range  of  its  work  and  to  increase 

'  Readings,  p.  338,  for  an  interesting  example  of  methods. 
^  Reinsch,  Readings,  p.  353.  ^  See  below,  p.  369. 


368  American  Government  and  Politics 

the  salaries  of  its  employees.  Army  and  naval  officers,  loyal  to 
their  branch  of  the  service,  are  always  demanding  larger  and 
larger  appropriations.  Then  there  is  the  interminable  Hst  of 
appropriations  forced  upon  Congress  through  log-rolhng  —  ap- 
propriations for  post-offices,  river  and  harbor  improvements,  naval 
stations,  docks,  and  other  pubUc  works  which  redound  to  the 
advantage  of  specific  localities.^ 

More  than  once  members  have  protested  against  this  system. 
"  This  practice,"  exclaimed  Mr.  Cannon  in  the  House  in  1902, 
"  of  going  from  committee  to  committee  that,  under  the  rules 
of  the  House,  has  jurisdiction,  and  then  before  the  matter  has 
been  investigated,  by  the  aid  of  a  willing  Senate,  failing  in  one 
place,  rushing  to  another  that  has  not  jurisdiction,  and  stick- 
ing in  amendments  here,  there,  and  yonder  ought  to  be  done 
away  with.  Appropriation  for  the  next  year,  appropriation  for 
this  year,  legislation  here,  legislation  there.  If  action  is  con- 
tinued along  these  lines  it  will  demoralize  the  matter  of  appro- 
priation and  bring  scandal  and  criticism  —  deserved  criticism  — 
from  the  people  of  the  country."  ^  Nevertheless,  the  system 
continues,  and  the  interests  that  are  constantly  seeking  large 
appropriations,  fight  against  every  attempt  at  reform. 

As  a  result,  the  committees  are  subject  to  a  thousand  demands 
for  increased  expenditures  to  every  one  that  comes  on  behalf  of 
economy.  Moreover,  each  committee,  jealous  of  its  own  prerog- 
atives, is  anxious  to  carry  its  own  bills  through  the  House. 
Consequently  the  Treasury  of  the  United  States  is  under  constant 
and  relentless  attack;  its  defenders  are  few  in  number  and  the 
implements  of  defence  are  wholly  inadequate  to  the  task.  When 
an  interest  seeking  a  new  or  increased  appropriation  fails  in  one 
committee  of  the  House  it  goes  to  another;  failing  in  the  House, 
it  repeats  the  same  process  in  the  Senate;  and,  under  the  system 
of  divided  responsibility  which  exists,  it  is  generally  successful. 
"There  is  no  selfish  interest  on  the  side  of  economy,"  declared 
Mr.  Gillett  in  the  House,  in  1905,  "while  every  member  has  pres- 
sure from  home  for  increased  expenditure,  and  naturally  the  gov- 
ernment suffers.  Experience  on  the  appropriations  committee, 
when  one  sees  how  defenceless  the  Treasury  is  against  the  constant 
assaults  upon  it,  is  bound  to  make  a  man  an  economist  unless  he 
reaches  that  hopeless  stage  where  he  concludes  that  resistance  is 
'  See  above,  p.  269.  ^  Reinsch,  Readings,  p.  203. 


Taxation  and  Finance 


369 


vain,  and  that  he  might  as  well  join  the  scramble,  take  what  he 
can,  and  wait  for  the  deluge."  ^ 

The  English  House  of  Commons  solved  this  problem,  early  in 
the  eighteenth  century,  by  standing  orders  providing  that  the 
House  would  not  consider  any  motion  involving  a  charge  upon 
the  public  revenue  unless  recommended  by  the  crown  —  which 
means  to-day,  unless  recommended  by  the  Cabinet  of  responsible 
ministers  representing  the  majority  and  definitely  responsible 
to  the  country  and  to  a  party  for  its  poUcies  and  achievements. 
This  system  has  been  adopted  by  the  self-governing  colonies  of 
the  British  empire.^ 

A  sHght  step  in  the  direction  of  concentrated  financial  respon- 
sibility in  the  federal  government  was  made  in  1909  by  the  act  of 
Congress,  mentioned  above,  which  seems  to  have  attracted  slight 
public  interest,  but  which  may  prove  a  turning-point  in  the  history 
of  federal  finances.  Under  this  act  the  Secretary  of  the  Treasury 
is  required  to  collect  from  all  the  executive  departments  their 

*  Reinsch,  Readings,  p.  357.  The  tendency  to  increase  is  illustrated  by 
this  official  statement  of  appropriations,  fiscal  years  1907,  1908,  and  1909. 


Fiscal  Year 
1907 

Fiscal  Year 
1908 

Fiscal  Year 
1909 

Agriculture       

$9,930,440.00 

71,817,165.08 

3,091,09417 

10,138,672.16 

5,053,99300 

9,260,599.98 

29,681,919.30 

1,664,707.67 

102,091,670.27 

140,245,500.00 

191,695,998.75 

98,538,770.32 

$9,447,290.00 

78,634,582.75 

3,092,33372 

10,440,598.63 

6,898,011.00 

10,125,076.15 

32,126,333.80 

1,929,703.42 

98,958,507.50 

146,143,000.00 

212,091,193.00 

37,108,083.00 

110,769,211.30 

$11,672  106  00 

Army 

95,382,247.61 
3,577,463-91 

10,117,668.85 
9,317,145-00 
9,253,347  87 

Diplomatic  and  consular 

District  of  Columbia 

Fortification 

Indian 

Legislative,  etc 

32,833,821  00 

Military  Academy     ........ 

Navy       

Pension 

Post-Office        

845,634-87 
122,662,485.47 
163,053,000.00 

22  2.062.'t02.OO 

River  and  harbor       

Sundry  civil 

112. 0^7. '^1^.22 

Total        

673,210,530.70 
39,129,035-45 

757,763,924.27 
12,408,998.91 

704,614,625.80 

Deficiency,  1908  and  prior  years      .     .     . 

56,995,973.65 

Total         

712,339,566.15 
27,173,29901 

770,172,923.18 
738,900.62 

851,610,599-45 
3,000,000.00 

Miscellaneous        

Total,  regular  annual  appropriations     . 
Permanent  annual  appropriations         .     . 

Grand  total,  regular  and  permanent  an- 
nual appropriations 

739,512,865.16 
140,076,320.00 

770,911,823.80 
149,886,320.00 

854,610,599.45 
154,194,295.12 

879,589,185.16 

920,798,143.80 

1,008,804,894.57 

'  Lowell,  Government  of  England,  Vol.  I,  pp.  279  flF. 


370  American  Government  and  Politics 

estimates  of  the  expenditures  necessary  for  the  ensuing  fiscal  year 
and  then  to  estimate  the  probable  revenues  of  the  government  for 
the  same  period.  The  act  provides  that  it  shall  then  be  the  duty 
of  the  President  of  the  United  States,  in  case  a  probable  deficit  is 
shown  by  the  Treasurer's  estimates,  to  recommend  the  methods 
by  which  the  deficit  may  be  met. 

Obviously  the  rush  on  the  Treasury  must  be  checked,  and  as 
Congress  is  apparently  unable  to  meet  the  problem,  it  seems  to  be 
caUing  in  executive  help,  which  also  imphes  executive  responsi- 
biHty  in  a  large  measure. 

Congress  is,  therefore,  not  unaware  of  the  chaotic  condition  of 
national  finances,  and  within  the  last  few  months  the  whole  prob- 
lem has  been  somewhat  thoroughly  discussed  in  both  houses. 
Mr.  Tawney,  of  the  appropriations  committee,  has  declared  that 
$50,000,000  a  year  is  being  wasted  by  present  methods,  and  Mr. 
Aldrich,  of  the  finance  committee  in  the  Senate,  puts  the  amount  at 
$300,000,000  a  year.  During  the  special  session  of  1909,  the 
Senate  created  a  public  expenditures  committee  with  more  im- 
portant and  extensive  duties  than  any  such  committee  has  en- 
joyed since  the  beginning  of  our  history.  This  committee,  in 
February,  1910,  reported  to  the  Senate  a  bill  creating  a  Business 
Methods  Commission  to  consist  of  three  Senators,  three  Repre- 
sentatives, and  three  members  appointed  by  the  President,  and 
authorized  to  go  into  the  whole  matter  of  national  finance  with 
searching  scrutiny  and  prepare  plans  for  putting  our  budget- 
making  on  a  sound  basis. 

The  actual  work  of  preparing  an  appropriation  bill  is  under- 
taken by  the  committee  having  that  specific  matter  in  charge. 
The  general  committee  on  appropriations  is  divided  into  several 
sub-committees,  each  one  of  which  prepares  one  or  more  measures. 
Usually,  the  sub-committees  hold  hearings,  at  which  the  heads 
of  the  various  departments  and  chiefs  of  bureaus  may  explain 
their  needs.  The  measures  prepared  by  these  sub-committees  are 
then  brought  together  in  one  group  and  considered  by  the  whole 
committee.  The  chairman  of  the  committee  on  appropriations, 
in  order  to  have  at  least  some  supervision  over  the  other  com- 
mittees in  charge  of  appropriations,  appoints  a  few  members  of  his 
group  to  watch  all  of  the  appropriation  measures,  but  this  control 
is  only  slight  —  it  does  not  in  any  way  work  an  effective  coordi- 
nation of  the  spending  groups  in  the  House  of  Representatives. 


Taxation  and  Finance 


37^ 


When  an  appropriation  bill  is  reported  by  a  committee,  it  is 
placed  on  the  union  calendar.  On  the  proper  occasion  the  bill 
is  called  up  by  the  member  having  it  in  charge,  and  the  House, 
in  going  into  the  committee  of  the  whole  for  its  consideration, 
agrees  that  a  certain  time  shall  be  allowed  for  debate.  This  time 
is  equally  divided  between  the  two  parties  in  the  House,  and  it  is 
devoted  to  a  general  discussion,  during  which  speeches  are  usually 
made  on  almost  any  subject.  After  the  general  discussion,  there 
Js  a  debate  under  the  five-minute  rule;  the  bill  is  considered  sec- 
tion by  section,  and  any  member  is  allowed  to  introduce  an  amend- 
ment and  speak  on  it  five  minutes.  When  these  general  and 
detailed  discussions  are  finished,  the  committee  of  the  whole  rises 
and  reports  the  bil^  to  the  House,  with  the  amendments  made  in 
the  committee;  and  it  is  then  passed  in  the  House  as  a  rule  under 
the  previous  question;    that  is,  without  debate. 

Appropriation  bills,  when  passed  by  the  House,  are  trans- 
mitted to  the  Senate,  and  with  some  exceptions  are  referred  to 
the  committee  on  appropriations  in  that  body.  Bureau  chiefs  ^ 
and  other  persons,  who  were  unsuccessful  in  obtaining  increased 
or  new  appropriations  in  the  House,  immediately  begin  to  besiege 
the  Senate  committees.  Appropriation  bills  are  debated  in  the 
Senate  with  more  freedom  than  obtains  in  the  House,  and  this 
freedom  enables  any  Senator  who  desires  some  particular  appro- 
priation for  his  state  to  threaten  to  "  talk  the  bill  to  death ''  unless 
his  terms  are  conceded.  It  is,  accordingly,  a  general  practice  for 
the  Senate  to  increase  very  materially  the  appropriations  adopted 
by  the  House.  For  example,  it  added  to  the  House  bills  for  the 
year  1907-08  sums  amounting  to  more  than  $70,000,000. 

As  in  the  case  of  tariff  bills,  differences  between  the  Senate  and 
the  House  are  adjusted  by  a  conference  committee  representing 
the  two  bodies.  The  result  is  always  a  compromise  which  is 
accepted,  as  a  rule,  without  reopening  the  discussion.  We  find 
here  the  same  lack  of  responsibiUty  and  coordination  which 
occurs  in  the  case  of  revenue  measures,  and  a  total  failure  of  any- 
thing Hke  a  proper  adjustment  of  revenues  and  expenditures. 

In  Great  Britain,  the  budget,  embracing  the  estimated  expen- 
ditures and  the  revenue  measures  to  meet  them,  is  prepared  under 

^  This  is  forbidden  by  recent  executive  order  (except  with  the  consent  of 
the  head  of  the  department) ;  but  it  remains  to  be  seen  how  efifective  this  order 
will  be.    Above,  p.  213. 


Zl^ 


American  Government  and  Politics 


the  direction  of  a  responsible  minister,  the  Chancellor  of  the 
Exchequer,  and  when  it  is  adopted  it  is  a  finished  project  which 
has  received  the  final  scrutiny  of  both  houses.  Of  course,  the 
minister  may  be  wrong  as  to  the  estimates  or  the  revenues  which 
may  accrue  from  his  proposed  measures;  but  at  all  events  there 
is  an  actual  attempt  to  balance  the  outgo  and  the  income.^  In 
the  United  States,  however,  several  groups  of  men  have  charge  of 
spending  money,  while  the  chief  revenue  measure,  the  tariff  act, 
is  designed  by  other  groups  for  the  protection  of  industries  rather 
than  for  meeting  the  expenses  of  the  government. 

Furthermore,  there  is  in  the  United  States  no  adequate  provi- 
sion for  the  scrutiny  of  the  actual  expenditure  of  the  money  when 
it  is  appropriated  by  the  legislative  branch  of  the  government. 
It  is  true,  each  house  has  committees  on  expenditures  for  the 
executive  departments,  whose  duty  it  is  to  see  that  the  money  is 
used  for  the  objects  for  which  it  was  actually  appropriated;  but 
these  committees  do  little  or  no  real  work.  This  absence  of  ade- 
quate scrutiny  formerly  encouraged  the  several  departments  to 
spend  their  respective  appropriations  in  a  reckless  manner  with- 

^  If  the  government  were  run  as  a  thoroughgoing  business  concern,  the 
revenues  and  expenditures  ought  to  balance  each  other,  at  least  with  some 
degree  of  accuracy,  but  in  fact  there  is  usually  a  large  surplus  or  deficit,  as  is 
indicated  by  this  table: 

RECEIPTS  AND  EXPENDITURES  U.  S.  GOVERNMENT 
Revenue  by  Fiscal  Years 


Years  Ending 
June  30 

Customs 

Internal 
Revenue 

Miscella- 
neous 
Items 

Total 
Revenue 

Excess  of 
Revenue 
over  Ordi- 
nary Ex- 
penditures 

1890       

1900       

1901       

1902       

1903       

1904       

1905       

1906       

1907  ...... 

1908       

1909       

$229,668,585 
233,164,871 
238,585,456 
254,444,708 
284,479,582 
261,274,565 
261,798,557 
300,251,888 
332,233,363 
286,113,130 
300,977,438 

$142,606,706 
295,327,927 
307,180,664 
271,800,122 
230,810,124 
232,904,119 
234,095,741 

251,711,127 
246,109,554 

$24,447,420 
35,911,171 
38,954,098 
36,153,403 
45,106,968 
46,453,065 
48,380,087 
45,052,031 
61,240,199 
63,301,862 
56,130,685 

$403,080,983 
567,240,852 
587,685,338 
562,478,233 
560,396,674 
540,631,749 
544,274-685 
594,454,122 
663,140,334 
601,126,119 
663,217,677 

$  85,040,272 

79,527,060 

77,717,984 

91,287,375 

54,297,667 

Mi,770,573 

=■  23,004,229 

25,669,323 

84,236,58s 

»  58,070,201 

'90,225,325 

^  These  are  deficits.  The  post-office  receipts  are  excluded  from  the  reve- 
nues listed  above  because  the  post-office  account  is  a  balanced  account, 
the  government  meeting  the  deficiencies. 


Taxation  and  Finance 


Z7Z 


out  apportioning  them  over  the  whole  fiscal  year,  and  then  to 
rely  upon  the  passage  of  a  deficiency  bill  by  Congress  to  make  up 
for  the  shortage  of  money.  A  law  has  been  recently  passed, 
however,  compeUing  the  head  of  each  department  to  distribute 
his  expenditures  over  the  fiscal  year  unless  in  case  of  an  emergency 
he  is  compelled  to  waive  the  rule/ 

The  Collection  of  Revenues^ 

The  collection  of  the  revenue  is  intrusted  to  two  branches  of  the 
Treasury  Department  —  one  having  charge  of  the  customs  duties 
and  the  other  the  internal  revenue.  For  the  collection  of  import 
duties  the  country  is  divided  into  customs  districts,  each  having 
a  port  of  entry  and  a  set  of  officials,  including  the  collector,  ap- 
praisers, special  agents,  inspectors,  etc.  The  internal  revenue  and 
the  revenue  from  the  new  corporation  tax  are  under  direct  charge 
of  the  commissioner  of  internal  revenue,  appointed  by  the  Presi- 
dent and  Senate.  For  purposes  of  administration  the  country  is 
divided  into  a  large  number  of  districts,  each  of  which  is  in  charge 
of  a  collector  appointed  by  the  President  and  the  Senate.  The 
collector  has  under  him  a  corps  of  officers  and  agents,  some  en- 
gaged in  the  routine  work  and  others  acting  as  detectives  to 
prevent  frauds. 

The  revenues  of  the  United  States  in  taxes,  fees,  postal  charges, 
etc.,  are  stored  in  Washington  and  in  nine  subtreasuries  lo- 
cated at  Baltimore,  Boston,  Chicago,  Cincinnati,  New  Orleans, 
New  York,  Philadelphia,  St.  Louis,  and  San  Francisco.  The 
Secretary  of  the  Treasury  is,  furthermore,  authorized  to  put  por- 
tions of  the  pubhc  funds  into  certain  national  banks  (designated  as 
depositories),  on  the  basis  of  United  States  bonds  or  other  satis- 
factory security. 

This  power  in  the  hands  of  the  Secretary  of  the  Treasury,  is 
an  enormous  one,  for  it  allows  him  to  give  or  withhold  the  aid  of 


The  total  national  debt  of  the  United  States: 


i860 

1870  July  I 
1880  July  I 
i8go  Dec.  i 
igoo  Nov.  I 

1901  Nov.  I 

1902  Nov.  I 


$  64,842,287.88 
2,480,672,427.81 
2,128,791.054.63 
1,549,206,126.48 
2,132.37.^-031.17 
2,151,585,743-89 
2,175,246,168.89 


1903  Nov.  I 

1904  Nov.  I 

1905  Nov.  I 

1906  Dec.  I 

1907  Nov.  I 

1908  Nov.  I 

1909  Nov.  I 


2,218,883,772.89 
2,304,697,418.64 
2,293,846,382.34 
2,429,370,043.54 
2,492,231,518.54 
2,637,973.747-04 
2,661,426,301.04 


Reference:  Dewey,  Financial  History,  pp.  488  ff. 


374  American  Government  and  Politics 

the  government  in  time  of  stringency.  It  was  the  regular  policy  of 
Secretary  Shaw  to  come  to  the  aid  of  the  money  market  whenever 
a  crisis  was  threatened,  by  distributing  government  funds  among 
the  banks  whose  surplus  reserves  had  run  low.  In  February  of 
1906,  $10,000,000  was  transferred  to  national  bank  depositories 
of  seven  principal  cities.  This  action  faiHng  to  bring  rehef, 
the  Secretary  offered  to  make  additional  deposits,  on  the  basis  of 
satisfactory  security,  equivalent  to  the  amount  of  gold  which  the 
specified  banks  had  engaged  for  importation,  and-  as  a  result 
brought  about  $50,000,000  of  foreign  gold  into  the  United  States. 
Thus  a  large  amount  of  government  money  was  placed  in  circu- 
lation through  the  banks,  foreign  gold  was  secured,  and  the  money 
stringency  relaxed.  In  the  panic  of  1907,  Secretary  Cortelyou 
likewise  came  to  the  aid  of  the  money  market  with  federal  funds. 
The  advantage  of  this  poUcy  not  only  to  the  banks  but  to  the 
borrowers  of  money  is  evident  even  to  the  superficial  observer; 
but  the  intimate  connection  which  it  establishes  between  the 
government  and  private  interests  is  obviously  full  of  grave 
dangers. 

The  Monetary  System 

Under  the  Constitution,  Congress  has  power  to  coin  money 
and  regulate  its  value  and  also  to  borrow  money.  It  will  be 
noted  that  Congress  is  not  expressly  authorized  to  issue  paper 
money  in  any  form.  The  Articles  of  Confederation  gave  the 
confederate  congress  the  power  to  borrow  money  and  emit  bills  on 
the  credit  of  the  United  States;  and  in  a  draft  of  a  constitution 
submitted  to  the  convention  of  1787  by  Mr.  Pinckney,  it  was 
proposed  to  continue  this  provision.  However,  on  the  motion  of 
Gouverneur  Morris,  the  phrase  "emit  bills  on  the  credit  of  the 
United  States"  was  struck  out,  after  a  considerable  debate,  in 
which  the  opinion  was  expressed  that  it  would  have  a  most  salu- 
tary influence  on  the  credit  of  the  United  States  to  remove  even 
the  possibiHty  of  paper  money.  Nevertheless,  it  is  not  absolutely 
certain  that  it  was  the  intention  of  the  f  ramers  of  the  Constitution 
to  prevent  the  issue  of  paper  money  in  any  form,  for  Mr.  Madison 
beheved  that  the  omission  of  the  phrase  relative  to  bills  of  credit 
did  not  deprive  the  government  of  the  use  of  public  notes  "so  far 
as  they  could  be  safe  and  proper." 

At  all  events,  Congress,  under  the  special  financial  stress  of  the 


•  Taxation  and  Finance  37 r 

Civil  War,  did  authorize  the  issue  of  paper  and  declared  it  to  be 
lawful  money  and  legal  tender  for  the  payment  of  all  debts,  public 
and  private,  except  duties  on  imports,  demands  against  the  United 
States,  and  interest  payable  in  coin.  The  constitutionality  of 
this  law  was  speedily  tested,  and  the  Supreme  Court  of  the 
United  States  held  that  an  act  making  mere  paper  promises  to 
pay  legal  tender  in  the  discharge  of  debts  previously  contracted 
was  not  a  means  appropriate  and  necessary  and  really  calculated 
to  carry  into  effect  any  express  power  vested  in  Congress,  and 
was  inconsistent  with  the  spirit  of  the  Constitution  and  pro- 
hibited by  that  instrument.^  After  a  reorganization  of  the 
Supreme  Court,  the  case  was  again  submitted  to  that  tribunal, 
and  it  was  then  held  that  the  legal  tender  acts  were  constitutional 
as  to  contracts  made  before  and  after  their  passage  by  Congress  — 
a  strong  argument,  being  based  on  the  necessities  of  war  time. 
Even  this  argument  was  cast  aside  later,  when,  in  1878,  Congress 
passed  an  act  that  the  Treasury  should  not  retire  or  cancel  legal 
tender  notes  on  their  redemption,  but  reissue  them  and  keep 
them  in  circulation;  and  the  measure  was  upheld  by  the  Court.^ 
As  a  result,  it  may  be  said  that  Congress  may  create  legal  tender 
notes  whenever  it  may  be  deemed  necessary. 

The  power  over  the  monetary  system  is  virtually  exclusive  in 
Congress,  for  according  to  the  express  provision  of  the  Constitu- 
tion no  state  can  coin  money,  make  anything  but  gold  and  silver 
coin  of  the  United  States  a  tender  in  the  payment  of  debts,  or 
emit  bills  of  credit.  A  bill  of  credit  has  been  defined  by  the  Su- 
preme Court  as  a  paper  medium  issued  by  a  state  on  its  own 
authority,  designed  to  circulate  between  individuals  and  between 
the  government  and  individuals  for  the  ordinary  purposes  of 
society.'  This  limitation,  however,  was  later  interpreted  in 
such  a  way  as  to  authorize  the  issue  of  paper  money  through  a 
public  corporation  in  which  the  state  was  the  sole  or  principal 
stockholder,  for  the  Court  maintained  that  to  constitute  a  bill 
of  credit  within  the  meaning  of  the  federal  Constitution  it  must 
be  issued  by  the  state,  "on  the  credit  of  the  state,"  and  designed 
to  circulate  as  money. 

Under  this  states'  rights  interpretation,  the  provision  of  the 

*  Hepburn  v.  Griswold,  8  Wallace,  603. 
'  Juilliard  v.  Greenman,  no  U.  S.  R.,  421. 
3  Craig  et  al  v.  Missouri,  4  Peters,  410. 


'^']b  American  Government  and  Politics 

federal  Constitution  forbidding  states  to  emit  bills  of  credit  was 
substantially  annulled,  and  an  enormous  amount  of  state  bank 
paper,  often  without  a  sound  currency  basis,  was  put  into  circu- 
lation, with  what  results  every  student  of  "the  middle  period" 
of  our  history  is  well  acquainted. 

At  length,  in  1866,  Congress  determined  to  centralize  the  mone- 
tary control,  and  it  accordingly  passed  an  act  imposing  a  tax  of 
ten  per  cent  annually  on  all  state  bank  issues.  The  tax  was  up- 
held by  the  Supreme  Court  of  the  United  States  in  the  case  of 
Veazie  Bank  v.  Fenno,  and  thus  the  states  were  forced  out  of  the 
paper  money  business.^ 

The  money  of  the  United  States  now  falls  into  two  groups: 
paper  and  coin.  The  former  embraces  United  States  notes  or, 
as  they  are  more  popularly  known.  Civil  War  "greenbacks," 
which  are  in  circulation  under  the  redemption  act  which  went 
into  effect  in  1879,  placing  them  on  a  gold  basis;  treasury  notes 
issued  under  the  act  of  1890  for  the  purchase  of  silver  (now  re- 
pealed); gold  certificates  issued  whenever  the  reserve  in  the 
Treasury  is  above  $100,000,000;  silver  certificates  issued  for 
the  purchase  of  silver  under  the  Bland- AlHson  bill  of  1878  (now 
repealed) ;  and  national  bank  notes.-  The  whole  system  was  put 
on  a  gold  basis  by  act  of  Congress  in  1900. 

The  preparation  of  the  paper  money  of  the  United  States  is 
in  charge  of  the  bureau  of  engraving  and  printing  in  the  Depart- 
ment of  the  Treasury.  The  coins  are  made  at  three  United 
States  mints  —  Philadelphia,  San  Francisco,  and  New  Orleans. 
In  addition  to  the  mints,  federal  assay  offices  are  maintained  at 
New  York,  St.  Louis,  Denver,  Seattle,  and  a  few  other  points 
where  private  persons  may  deposit  gold  and  silver  bullion  and 
have  its  value  determined  by  experts. 

Under  the  monetary  power.  Congress  has  provided  a  system  by 
which  private  associations  known  as  national  banks  may  be 
formed.     The  capital  stock  of  the  national  bank  varies  according 

^  It  is  impossible  to  give  here  even  the  most  meagre  outline  of  the  long 
and  complicated  history  of  the  American  monetary  system.  For  this,  see 
the  admirable  work  by  Professor  Dewey,  Financial  History  of  the  United 
States. 

^  The  coins  include  gold  pieces:  $20,  $10,  $5,  and  $2,50;  and  the  silver 
pieces:  the  dollar  (no  longer  coined),  the  50,  25,  and  10  cent  pieces,  and  the 
minor  pieces:  the  nickel  and  the  copper  cent. 


Taxation  and  Finance  yji 

to  the  population  of  the  city  in  which  it  is  located.  Each  na- 
tional banking  concern  is  required  to  deposit  with  the  comptroller 
of  the  currency  at  Washington  United  States  bonds  equivalent  to 
twenty-five  per  cent  of  its  capital  stock  in  case  the  capitaliza- 
tion is  under  $150,000,  and  bonds  equivalent  to  at  least  $50,000 
if  the  capitalization  is  over  $150,000  ;  ^  and  in  turn  it  may  issue 
through  the  comptroller  national  bank  notes  equal  to  the  par 
value  of  the  United  States  bonds  so  deposited.  In  case  a  national 
bank  fails  and  cannot  redeem  its  notes,  the  comptroller  may  sell 
its  bonds  and  apply  the  proceeds  to  the  redemption. 

To  secure  further  elasticity  for  the  currency,  an  act  was  passed 
in  1908  authorizing  the  formation  of  national  bank  associations 
(composed  of  not  less  than  ten  banks  having  an  aggregate  capital 
and  surplus  of  at  least  $5,000,000),  and  empowering  such  associa- 
tions to  issue  and  circulate  notes  on  the  basis  of  certain  specified 
securities.  In  1908  there  were  in  active  operation  6,827  national 
banks  with  a  combined  capital  of  over  $900,000,000;  but  very 
few  of  them  saw  fit  to  take  advantage  of  this  new  law. 

The  general  supervision  of  taxation  and  finance  in  all  its 
branches  is  vested  in  the  Secretary  of  the  Treasury  Department, 
who  must  scrutinize  the  annual  collection  and  disbursement  of 
seven  or  eight  hundred  miUion  dollars  and  account  accurately 
for  every  penny  of  it — a  huge  bookkeeping  undertaking.  He 
must  also  master  the  theoretical  and  practical  questions  of  fin- 
ance, in  order  to  make  recommendations  to  Congress  and  to  meet 
the  demands  of  that  body  for  expert  advice;  and  he  must  secure 
a  fair  and  impartial  administration  of  the  customs  duties  which 
are  irritating  to  importers  at  best  and  doubly  irritating  when 
administered  in  an  irregular  and  arbitrary  fashion. 

As  in  other  departments  of  the  federal  government,  of  course, 
the  work  is  distributed  among  offices  and  bureaus.  Immediately 
under  the  Secretary  of  the  Treasury  are  three  assistant  secre- 
taries, a  chief  clerk,  and  a  supervising  architect.  Each  of  the 
assistant  secretaries  has  assigned  to  him  certain  definite  duties. 
One  assistant  superintends  the  customs  and  special  agents;  an- 
other has  general  supervision  of  the  preparation  of  money;  and 
a  third,  control  over  the  internal  revenue  office.-  To  look  after 
the  accounts  of  the  various  departments  which,  of  course,  must 

*  This  is  the  minimum.  ^  Each  has  other  dutits  as  well. 


^"jS  American  Government  and  Politics 

draw  their  money  from  the  public  treasury,  there  is,  in  the  Treas- 
ury Department,  a  group  of  auditors  to  each  of  whom  is  assigned 
a  branch  of  accounts;  while  the  general  supervision  of  all  the  ac- 
counting, except  that  relating  to  the  post-office,  is  vested  in  the 
comptroller  of  the  treasury,  who  must  be  distinguished  from  the 
comptroller  of  the  currency,  an  officer  charged  with  supervising 
the  national  banking  system/ 

'  The  receipt,  custody,  and  disbursement  of  public  moneys  are  placed  in 
charge  of  the  Treasurer  of  the  United  States;  the  issue  of  bonds  and  other 
financial  paper  of  the  United  States  is  under  the  register  of  the  treasury;  the 
mints  and  assay  offices  are  under  the  director  of  the  mint;  the  superinten- 
dence of  the  internal  revenue  is  vested  in  a  commissioner  of  internal  revenue; 
while  the  preparation  of  bonds,  notes,  and  other  similar  paper  is  placed  in 
charge  of  the  bureau  of  printing  and  engraving.  The  work  of  the  Treasury 
Department  does  not  even  end  here.  It  embraces,  in  addition,  the  bureau 
of  public  health  and  marine  hospital  service  which  guards  our  ports  against 
contagious  diseases  and  makes  provision  for  disabled  seamen. 


CHAPTER  XIX  y 

THE  REGULATION  OF   COMMERCE 

The  Power  of  Congress  Judicially  Interpreted 

Congress  has  power  to  regulate  commerce  with  foreign 
nations,  among  the  several  states,  and  with  the  Indian  tribes; 
and  it  may  make  all  laws  necessary  and  proper  to  carry  this  power 
into  effect.^  The  term  "interstate  commerce"  has  been  inter- 
preted by  a  long  line  of  judicial  decisions  to  include  the  carriage 
of  passengers,  the  transportation  of  commodities,  and  the  trans- 
mission of  ideas,  orders,  and  information  by  telephone  or  tele- 
graph from  a  point  in  one  state  to  a  point  in  another.^  In  a  word, 
it  covers  traffic  and  intercourse  in  its  broadest  sense  regardless 
of  the  changes  which  time  and  mechanical  ingenuity  have  wrought. 
It  does  not,  however,  include  life,  fire,  and  marine  insurance  or  or- 
dinary contractual  relations,  even  though  the  latter  are  incident 
to  the  conduct  of  interstate  business. 

Notwithstanding  the  seeming  clearness  of  this  definition  of  the 
power  of  Congress  over  interstate  commerce,  it  is  very  difficult  to 
draw  the  Hne  between  acts  affecting  commerce  wholly  within  a 
state  and  acts  affecting  commerce  between  states.^  In  general 
we  may  say,  however,  that  the  Supreme  Court  has  upheld  state 
legislation  primarily  designed  for  legitimate  local  purposes,  al- 
though it  may  impinge  at  points  on  interstate  traffic. 

Federal  Control  of  Interstate  Commerce 

The  statutes  now  in  force  regulating  interstate  commerce  may 
be  classified  into  three  groups:  (i)  those  controlling  railways  and 
common  carriers;     (2)   those   designed  to  prevent  trusts  and 

^  This  power  is  subject  to  the  limitation  that  Congress  cannot  lay  duties 
on  exports  from  any  state,  give  preference  to  the  ports  of  one  commonwealth 
over  those  of  another,  or  compel  vessels  bound  from  one  state  to  another  to 
enter,  clear,  or  pay  duties  in  any  state. 

^  For  the  constitutional  provisions  and  an  important  illustrative  case,  see 
Readings,  p.  343. 

'  For  an  illustrative  case,  see  Readings,  p.  348.     See  below,  chap.  xxii. 

379 


jSo  American  Government  and  Politics 

combinations  in  restraint  of  trade;  and  (3)  those  aimed  at  miscel- 
laneous objects,  such  as  the  pure  food  law  and  the  law  imposing 
habiUty  on  railway  corporations  for  injuries  to  their  employees. 

In  the  beginning  of  the  railway  era  in  the  United  States,  Con- 
gress made  no  attempt  to  devise  a  large  and  far-sighted  plan  of 
public  control,  but  negligently  devoted  its  attention  to  granting 
generous  favors  to  railway  corporations.  As  a  result  all  early 
railway  legislation  deals  with  grants  of  public  lands,  concessions 
of  "rights  of  way,"  the  remission  of  duties  on  railway  materials 
imported  from  abroad,  and  kindred  measures  favoring  a  rapid 
development  of  the  railway  system. 

There  was  practically  no  agitation  for  regulation  in  the  interest 
of  the  public  until  the  close  of  the  Civil  War.  In  1868,  the 
House  committee  on  roads  and  canals  reported  that  Congress 
had  power  to  regulate  interstate  railways,  secure  the  safety  of 
travellers,  and  prescribe  uniform  and  equitable  rates  and  adequate 
connections;  but  the  House  failed  to  act.  Again,  in  1872,  on  a 
recommendation  embodied  in  the  President's  message,  a  Senate 
committee  devised  a  comprehensive  plan  for  regulating  railways, 
but  there  was  no  practical  outcome.  In  and  out  of  Congress^ 
however,  railway  regulation  had  become  the  subject  of  earnest 
discussion.  The  connection  of  many  Congressmen  with  great 
railway  interests  was  notorious,  and  it  was  beUeved,  with  good 
reason,  that  railway  corporations  were  buying  support  in  the 
national  legislature. 

At  length,  in  1885,  when  it  was  apparent  that  the  demand  for 
reform  could  be  no  longer  disregarded,  the  Senate  appointed  a 
committee  which  conducted  a  long  investigation  into  the  opera- 
tion of  railways  throughout  the  United  States  and  made  a  pres- 
entation of  such  notorious  abuses  that  Congress  was  compelled 
to  act.^  The  result  was  the  law  of  1887,  creating  an  Interstate 
Commerce  Commission  and  providing  certain  regulations  for 
common  carriers. 

This  original  act,  the  amendatory  and  supplementary  acts, 
the  decisions  of  the  courts,  and  the  orders  and  decisions  of  the 
Commission  now  constitute  a  formidable  body  of  federal  law,  and 
it  is  impossible  to  give  here  more  than  a  brief  statement  of  the 
general  principles.^ 

^  For  an  extract  from  this  Report,  see  Readings,  p.  352. 
^  Consult  Judson,  The  Law  of  Interstate  Commerce. 


The  Jlegulation  of  Commerce  381 

The  administration  of  the  law  is  placed  in  the  hands  of  an 
Interstate  Commerce  Commission  which  is  entirely  separate 
from  the  Department  of  Commerce  and  Labor.  This  commission 
consists  of  seven  members  appointed  by  the  President  and  Senate 
and  paid  a  salary  of  $10,000  each. 

The  Act  to  Regulate  Commerce,  as  the  law  is  called,  appUes  to 
corporations  and  persons  carrying  oil  or  other  commodities, 
except  water  and  gas,  by  means  of  pipe  Hnes,  or  transporting 
passengers  or  property  by  railway  or  by  rail  and  water  from 
one  state  or  territory  into  another  state  or  territory,  or  from  one 
place  in  any  territory  to  another  place  within  the  same  territory, 
or  from  any  place  in  the  United  States  to  a  foreign  country.^ 

A  large  number  of  restraints  are  laid  upon  the  carriers  and  cor- 
porations to  whom  the  Act  applies.  All  charges  for  services  in 
connection  with  transportation  of  passengers  or  property  must 
be  just  and  reasonable;  no  common  carrier  can  grant  free  passes 
or  free  transportation  except  to  certain  specified  persons  and  in- 
stitutions; and  railroad  companies  are  forbidden  to  transport 
commodities  in  which  they  have  a  direct  property  interest,  ex- 
cept timber  and  its  products.  Common  carriers  must  construct 
switches  and  make  connections  with  lateral  and  branch  lines  of 
railw^ays.  They  cannot  grant  rebates,  drawbacks,  and  special 
rates,  thus  discriminating  and  making  lower  charges  to  some 
persons  than  to  others  for  similar  services;  they  cannot  give  any 
undue  or  unreasonable  preference  or  advantage  to  any  particular 
person,  company,  corporation  or  locality;  and  they  are  forbidden 
to  make  arrangements  for  pooUng  freights  of  different  and  com- 
peting railways,  or  for  dividing  among  themselves  the  net  proceeds 
of  the  earnings  of  such  roads.  They  must  print  and  keep  open 
for  pubHc  inspection  schedules  showing  rates,  fares,  and  charges 
for  transportation,  and  no  change  can  be  made  in  the  rates,  fares, 
and  charges  so  pubUshed  except  after  thirty  days'  notice  to  the 
Interstate  Commerce  Commission.  Finally  they  must  also  ren- 
der full  and  complete  annual  reports  to  the  Commission  in  the 
manner  prescribed  by  that  body;   and  there  is  now  established 

*  The  Act  does  not  apply  to  the  transportation  of  passengers  or  property 
or  to  receiving,  delivery,  storage  or  handling  of  property  wholly  within  one 
state.  The  Elkins  law  of  February  19,  1903,  prohibits  rebating  and  allows 
proceedings  in  the  courts  by  injunction  to  restrain  common  carriers  from 
departing  from  the  published  rates. 


382  American  Government  and^  Politics 

one  uniform  system  of  railway  accounting  throughout  the  United 
States. 

Certain  specific  powers  and  duties  are  vested  in  the  Interstate 
Commerce  Commission  by  law.  The  Commission  is  required  to 
investigate  the  manner  in  which  business  is  conducted  by  those 
^Triers  to  whom  the  law  applies^^itjin^thB  request  of  the 
CornnussToh  any  district  attorney  of  theUnitedT^ates  must  prose- 
cute, in  the  proper  court,  offenders  against  the  law.  The  Com- 
mission is  empowered  to  summon  witnesses  and  compel  the  pro- 
duction of  books,  papers,  and  other  documents  relating  to  any 
matter  under  investigation.^  Any  person,  corporation,  body 
politic,  or  municipal  organization  complaining  of  anything  done 
or  omitted  to  be  done  by  any  common  carrier,  contrary  to  the 
provision  of  the  law,  may  apply  to  the  Commission  by  a  petition 
stating  the  facts,  and  the  Commission  must  thereupon  make  an 
investigation  into  the  alleged  violations.  The  Commission  is 
empowered,  after  full  hearing  upon  such  a  compTaihrbr  upon 
complaint  of  any  common  carrier,  tp  determine  and  prescribe 
just  and  reasonable  maximum  rates  and  charges,  as  well  as  just  and 
reasonable  regulations  and  practices.  The  Commission  may  fur- 
thermore award  damages  to  persons  injured  by  a  violation  of  the 
law  on  the  part  of  any  common  carrier. 

It  is  thus  apparent  that  the  federal  government  has  taken  upon 
itself  the  supervision  of  the  entire  transportation  system  of  the 
United  States  so  far  as  it  involves  interstate  and  foreign  com- 
merce; and  inasmuch  as  practically  all  local  carriers  are  now 
absorbed  into  the  great  corporations,  it  may  be  said  the  power  of 
the  Commission  extends  to  the  utmost  ramifications  of  our  net- 
work of  railways.  Undoubtedly  the  federal  government  is,  by 
this  process,  drawing  to  itself  an  ever  greater  amount  of  power. 
Without  question,  the  tendency  of  Congress  to  increase  and  ex- 
tend this  national  system  of  regulation  will  result  in  concentrating 
in  Washington  more  than  ever  the  conflict  between  the  govern- 
ment and  the  representatives  of  the  railway  and  transportation 
interests.^ 

*  The  Commission  cannot  punish  any  one  for  refusing  to  testify;  it  must 
apply  to  a  federal  court  in  such  a  case. 

*  A  law  providing  for  an  interstate  commerce  court  and  still  stricter  super- 
vision over  conmierce  is  recommended  by  President  Taft  and  is  now  (1910) 
before  Congress. 


The  Regulation  of  Commerce  383 

In  the  meanwhile  the  government  is  also  endeavoring  to  control 
the  great  trusts  and  corporations  engaged  in  interstate  business. 
The  way  in  which  one  industry  after  another  has  been  absorbed 
by  corporations,  national  and  even  international  in  the  extent  of 
their  operations,  is  a  matter  of  recent  and  famiUar  history. 
All  great  staple  industries  are  now  consoUdated;  and  ever3rwhere 
competition  is  being  stifled  by  the  combination  of  competing  con- 
cerns. Moreover  the  control  over  the  bank  deposits  throughout 
the  whole  United  States  is  tending  Hkewise  to  centraHze  in  the 
hands  of  large  financial  institutions  which  work  in  conjimction 
with  the  business  organizations. 

In  the  very  beginning  of  this  revolution  there  were  a  few  states- 
men who  saw  that  the  arm  of  the  government  must  be  used  in 
some  way  to  check  and  control  the  men  in  whose  hands  this  enor- 
mous power  over  capital,  commerce,  and  industry  was  concen- 
trating ;  but  it  can  hardly  be  said  that  there  has  been  any  general 
agreement  either  as  to  the  temporary  or  final  nature  of  that  con- 
trol. A  protest  against  the  inaction  of  the  federal  government 
in  the  face  of  this  great  economic  centralization  was  made  by  the 
radical  minor  parties  shortly  after  the  Civil  War;  and  they  grew 
more  insistent  as  time  advanced.  At  length,  in  1890,  Congress 
passed  a  law  designed  "to  protect  trade  and  commerce  against 
unlawful  restraint  and  monopolies,"  —  the  famous  Sherman 
Anti-trust  Act.^  By  this  law,  it  was  provided  that  every  con- 
tract, combination,  in  the  form  of  a  trust  or  otherwise,  or  conspir- 
acy in  restraint  of  trade  or  commerce  among  the  several  states 
and  territories  and  with  foreign  nations  was  illegal;  and  appropri- 
ate penalties  were  prescribed  for  violations.  Under  the  interpre- 
tation of  the  Supreme  Court,  the  law  has  been  held  to  forbid  all 
combinations  among  common  carriers  in  restraint  of  trade, 
whether  reasonable  or  unreasonable;  and  in  the  Northern  Se- 
curities case  the  Court  declared  that  even  the  formation  of  a 
holding  company  controlling  a  majority  of  the  stock  in  two  com- 
peting railways  was  an  illegal  combination. 

It  must  be  noted,  however,  that  under  the  law,  corporations  or 
trusts,  as  such,  cannot  be  regulated;  they  must  be  engaged  in  in- 
terstate or  foreign  commerce  in  order  to  come  within  the  terms 
of  the  act.     In  the  Sugar  Trust  case,^  for  example,  the  Court  held 

'  This  Act  is  in  the  Readings,  p.  358. 

2  United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  R.,  i. 


384  American  Government  and  Politics 

that  the  Anti-trust  law  did  not  control  a  great  sugar  company 
which  had  secured  practically  a  monopoly  of  the  manufacture  of 
sugar  in  the  United  States  by  purchasing  the  stock  of  the 
various  refining  companies.  The  ground  of  the  opinion  was  that 
the  monopolies  forbidden  by  the  law  were  those  actually  involving 
interstate  or  foreign  commerce,  not  those  simply  controlling  the 
manufacture  of  commodities,  even  though  such  commodities  after- 
ward entered  interstate  and  foreign  traffic.  In  this  connection 
the  Court  said  that  if  Congress  could  regulate  the  great  corpora- 
tions that  merely  happened  to  own  property  in  a  large  number 
of  states,  it  could  practically  exclude  the  states  from  control  over 
commerce  and  manufactures. 

Where,  however,  a  number  of  companies,  engaged  in  the  inanu- 
facture  of  some  article,  form  an  organization,  divide  the  territory 
of  the  United  States  among  themselves  for  the  sale  of  that  article, 
and  suppress  competition,  the  Act  appHes.  The  Court  has  so  held 
on* the  ground  that,  when  the  direct,  immediate,  and  intended 
effect  of  a  contract  or  combination  among  dealers  in  a  commodity 
is  the  enhancement  of  prices  and  suppression  of  competition,  it  is 
a  restraint  in  that  commodity.^ 

The  Anti-trust  Act  Hkewise  applies  to  trade  unions  whose 
operations  affect  interstate  commerce,  as  well  as  to  other  combina- 
tions. For  example,  in  the  case  of  Loewe  v.  Lawlor  the  Court 
held  that  when  a  labor  organization,  by  the  use  of  labels  and 
notices  in  labor  papers  and  other  means,  boycotts  a  manufacturing 
concern  doing  a  large  interstate  business,  the  said  organization 
becomes  a  combination  in  restraint  of  trade  and  is  liable  to  the 
penalties  of  the  Anti-trust  Act.^    • 

In  spite  of  the  formidable  appearance  of  the  Sherman  law,  its 
effect  in  checking  the  formation  of  trusts  and  combinations  has 
been  very  sUght.  To  facihtate  the  enforcement  of  the  law,  there 
was  estabHshed  in  1903,  on  the  recommendation  of  President 
Roosevelt,  a  bureau  of  corporations  in  the  Department  of  Com- 
merce and  Labor.  The  head  of  the  bureau,  bearing  the  title  of 
the  commissioner  of  corporations,  is  authorized  to  investigate 
the  organization,  conduct,  and  management  of  corporations  (other 
than  common  carriers  ^)  engaged  in  interstate  commerce;  to  com- 

'  Addyston  Pipe  and  Steel  Co.  v.  United  States,  175  U.  S.  R.,  211. 

=  208,  U.  S.  R.,  274. 

'  Subject  to  the  Interstate  Commerce  Act. 


The  Regulation  of  Commerce  385 

pel  by  subpoena  the  attendance  of  witnesses  and  the  production  of 
books,  papers,  and  documents  for  such  purposes;  to  administer 
oaths;  to  require  reports  from  such  corporations;  and  to  investi- 
gate the  legal  conditions  appUcable  to  them  —  in  a  word,  to 
collect  and  make  pubUc  information  of  every  sort  bearing  upon 
the  organization  and  conduct  of  great  concerns  engaged  in  inter- 
state and  foreign  commerce.  The  business  of  the  bureau, 
therefore,  is  not  the  prosecution  of  criminals,  but  the  investiga- 
tion of  law  and  fact  for  the  purpose  of  furnishing  to  the  govern- 
ment a  sound  basis  for  remedial  legislation. 

Within  recent  years  there  has  come  a  clearer  understanding  of 
the  nature  of  our  economic  development,  and  the  undiscriminat- 
ing  criticism  of  all  corporations  is  being  replaced  by  saner  views 
based  upon  the  recognition  of  the  fact  that  the  era  of  small  com- 
peting business  concerns  is  at  an  end.  Nevertheless  there  still  is 
a  large  variety  of  views  as  to  the  fundamental  nature  and  tendency 
of  our  economic  development.  Only  relatively  few  men  in  public 
Ufe  to-day  assume  the  attitude  of  the  past  generation  that  trusts 
and  corporations,  as  such,  should  be  broken  up.  A  large  number 
of  publicists  would  discriminate  between  what  they  are  pleased 
to  call  "good"  and  "bad"  trusts,  placing  in  the  former  category 
those  business  concerns  which  do  not  attempt  complete  monopo- 
lies and  unreasonable  enhancement  of  prices  and  in  the  latter 
category  those  corporations  which  are  constantly  violating  the 
law  and  endeavoring  to  create  monopolies.  Finally  there  are  the 
sociaUsts,  who  contend  that  monopoly  is  the  inevitable  result  of 
competition,  that  competition  is  a  crude  and  wasteful  method  of 
doing  business,  and  that  the  ultimate  outcome  will  be  the  assump- 
tion of  the  ownership  of  the  great  monopoUes  by  the  government. 

At  all  events  there  is,  at  the  present  time,  a  decided  movement 
away  from  the  old  bUnd  hostility  to  corporations,  in  the  direction 
of  some  form  of  government  regulation.  In  this  movement, 
Mr.  Roosevelt  has  taken  a  prominent  part.  When  governor  of 
New  York,  he  said  in  a  message  to  the  legislature:  "Much  of  the 
legislation,  not  only  proposed  but  enacted  against  trusts,  is  not 
one  whit  more  inteUigent  than  the  mediaeval  Bull  against  a  comet, 
and  has  not  been  one  particle  more  effective."  As  President, 
he  said  in  his  annual  message  to  Congress  in  1905 :  "  It  is  generally 
useless  to  try  to  stop  all  restraint  on  competition,  whether  this 
restraint  be  reasonable  or  unreasonable;  and  when  it  is  not  useless, 

2C 


386  American  Government  and  Politics 

it  is  generally  hurtful."  In  his  Report  of  1908,  the  commissioner 
of  corporations  declared:  "There  is  an  irresistible  movement 
toward  concentration  in  business.  We  must  definitely  recognize 
this  as  an  inevitable  economic  law.  We  must  also  recognize  the 
fact  that  industrial  concentration  is  already  largely  accompHshed 
in  spite  of  general  statutory  prohibition.  Recognizing  these 
facts,  the  aim  of  new  legislation  should  be  to  regulate  rather  than 
to  prohibit  combination.  .  .  .  Our  present  law  forbidding  all 
combination,  therefore,  needs  adaptation  to  the  actual  facts." ^ 

In  spite  of  the  demand  for  a  modification  of  the  Sherman  Anti- 
trust law  Congress  has,  however,  as  yet  refused  to  act. 

One  of  the  most  important  controverted  questions  in  connection 
with  the  regulation  of  corporations  is  the  wise  division  of  power 
between  the  state  and  federal  governments.  From  the  stand- 
point of  industry  and  commerce,  the  nation  is  a  unit,  but  the 
power  of  control  in  this  economic  unity  is  divided  among  forty- 
six  commonwealth  governments  and  the  national  government. 
The  former  create  corporations  and  regulate  their  intra-state 
operations;  the  latter  attempts  to  supervise  the  interstate  and 
foreign  business  of  corporations,  without  assuming  the  right  to 
prescribe  terms  as  to  their  creation  and  continuance.  It  is  claimed 
that  if  the  power  belonging  to  each  of  the  two  governments  were 
adequately  used,  complete  supervision  could  be  secured,  but  it 
must  be  remembered  that  the  exact  domain  of  power  belonging,  to 
each  is  vague,  and  the  Hne  between  the  two  jurisdictions  almost 
impossible  to  draw.  Furthermore,  the  courts  enjoy  the  power  to 
annul  the  laws  which  encroach  upon  the  sphere  belonging  to  each 
of  the  governments  without  having  the  right  to  fill  out  that  va- 
cant sphere  by  appropriate  legislation.  This  anomalous  situa- 
tion of  a  unified  economic  system  and  a  divided  control  has  led, 
within  recent  years,  to  a  demand  for  a  higher  degree  of  centraliza- 
tion of  power  in  the  hands  of  the  federal  government;  and  Presi- 
dent Taft  has  proposed  to  accomplish  this  by  an  act  providing 
for  the  federal  incorporation  of  concerns  engaged  in  interstate 
commerce  —  allowing  them  to  buy  and  hold  state  concerns  as 
well  —  and  vesting  larger  supervisory  functions  in  the  national 
government. 


'  Report  of  the  Department  of  Commerce  and  Labor  (1908),  p.  306. 


The  Regulation  of  Commerce  387 


Foreign  Commerce  —  Immigration 

Under  the  general  power  to  regxilate  commerce,  Congress  en- 
joys full  authority  over  the  admission  of  immigrants  to"  the 
United  States.  For  a  long  time,  the  principal  object  of  our  im- 
migration laws  was  to  encourage  the  coming  of  foreigners  to  our 
country;  but  within  recent  years  several  attempts  have  been 
made,  not  so  much  to  check  immigration,  as  to  eliminate  the 
more  undesirable  elements,  such  as  those  afflicted  with  dangerous 
contagious  diseases,  criminals,  paupers,  and  other  persons  likely 
to  become  pubUc  charges. 

The  immigration  law  of  the  United  States  now  makes  pro- 
vision for  the  exclusion  of  three  types  of  aliens:  (i)  the  generally 
undesirable;  (2)  contract  laborers;  and  (3)  the  Chinese  and  other 
Orientals.  ^ 

The  first  group  embraces  idiots,  feeble-minded  persons,  epilep- 
tics, paupers,  persons  Ukely  to  become  pubHc  charges,  professional 
beggars,  persons  affected  with  tuberculosis  or  loathsome  or  dan- 
gerous contagious  diseases,  criminals,  polygamists,  anarchists,  and 
prostitutes.  It  especially  provided,  however,  that  foreigners,  who 
have  been  convicted  of  purely  poHtical  offences  not  involving  moral 
turpitude,  will  not  be  excluded  if  they  are  otherwise  admissible. 

The  law  also  excludes  contract  laborers,  that  is,  persons  who 
have  been  induced  to  migrate  to  this  country  by  offers  or  promises 
of  employment  or  in  consequence  of  an  agreement  to  perform 
labor  of  any  kind,  skilled  or  unskilled.^  The  law  provides, 
however,  that  skilled  laborers  may  be  imported,  if  unemployed 
laborers  of  Uke  kind  cannot  be  found  in  the  country. 

The  third  group  of  aliens  to  whom  admission  is  denied  are 
excluded  under  a  series  of  treaties  and  agreements  with  China 
and  Japan  and  laws  of  Congress  enacted  especially  on  demand  of 
the  working  classes  and  the  inhabitants  of  the  states  on  the  Pacific 
Coast.^  According  to  the  terms  of  these  laws,  rules,  and  treaties, 
all  Chinese  are  excluded,  except  teachers,  students,  travellers 

'  Tt  is  a  misdemeanor  for  any  person  or  concern  to  assist  or  encourage  the 
migration  of  such  laborers  into  the  United  States.  Actors,  singers,  and 
professional  classes  are  not  included  in  this  group. 

^  There  is  no  special  law  or  treaty  excluding  Koreans  or  Japanese  laborers 
from  the  United  States;  but  the  Japanese  government,  by  arrangement 
with  the  federal  authorities,  is  supposed  to  control  the  emigration  of  its 


388  American  Government  and  Politics' 

for  curiosity  or  pleasure,  merchants  and  their  lawful  wives  and 
minor  children,  officials  of  the  Chinese  government  and  their 
servants,  and  certain  other  classes.  To  prevent  violations  of  the 
law,  provision  is  made  for  authorizing  and  registering  the  ad- 
mission of  Chinese  who  fall  within  these  groups.  The  administra- 
tion of  the  law,  including  the  right  to  admit  and  exclude  in 
accordance  with  the  regulations,  is  vested  in  the  immigration 
authorities,  with  an  appeal  to  the  commissioner-general  of  im- 
migration at  Washington;  and  the  decision  of  these  administra- 
tive officers  with  regard  to  the  facts  in  any  case  is  not  subject  to 
judicial  review.^ 

The  cost  of  administering  the  immigration  laws  is  partially  met 
by  a  tax  of  four  dollars  levied  on  every  ahen  entering  the  United 
States.^  Every  immigrant  is  required  to  state  whether  married 
or  single,  whether  able  to  read  or  write,  whether  in  possession  of 
$50,  or  if  less,  how  much,  whether  intending  to  join  a  relative 
or  friend,  and  if  so,  when  and  where,  and  to  give  his  nationahty, 
race,  calling,  or  occupation,  last  residence,  and  final  destination,  — 
in  addition  to  answering  a  number  of  other  questions.  Thus, 
a  complete  record  of  each  immigrant  is  secured,  in  order  that  the 
government  may  keep  a  close  scrutiny  over  the  persons  whom  it 
admits.  The  government  has  furthermore  instituted  a  searching 
medical  examination.  Each  immigrant  is  examined  by  an  in- 
spector for  mental  diseases,  then  by  an  inspector  for  internal  dis- 
eases, and  finally  by  an  inspector  of  diseases  of  the  eye. 

After  running  the  gauntlet  of  the  medical  inspectors,  the  immi- 
grant is  then  closely  questioned  by  a  general  inspector  with  regard 

laborers  to  the  United  States  by  refusing  to  issue  passports  to  them.  Under 
an  act  of  Congress,  approved  February  20,  1907,  whenever  the  President  is 
satisfied  that  passports,  issued  by  any  foreign  government  to  its  citizens 
authorizing  them  to  go  to  other  countries  than  the  United  States,  are  really 
being  used  for  the  purpose  of  enabling  the  holders  to  enter  the  continental 
territory  of  the  United  States  to  the  detriment  of  labor  conditions  therein, 
it  is  his  duty  to  refuse  admission  to  the  citizens  of  the  country  issuing  such 
passports.  By  virtue  of  the  authority  of  this  act.  President  Roosevelt,  in 
March,  1907,  issued  an  order  that  Japanese  or  Korean  laborers,  skilled  and 
unskilled,  who  have  received  passports  to  Mexico,  Canada,  or  Hawaii  and 
attempt  to  enter  the  United  States,  should  be  excluded  from  our  continental 
territory. 

^  See  Readings,  p.  202. 

^Of  course  persons  in  transit  through  the  United  States  and  diplomatic 
officers  are  not  taxed. 


The  Regulation  of  Commerce  389 

to  his  desirability  as  an  inhabitant  of  the  United  States.  "The 
modus  operandi  at  all  government  stations,"  says  the  former  New 
York  commissioner,  Mr.  Wachthorn,  "is  to  place  every  individual 
applicant  for  admission  to  these  shores  on  the  defensive  and  to 
make  it  incumbent  upon  him  ...  to  show  why  he  should  be 
admitted;  but  to  do  it  in  a  humane  spirit  and  treat  each  applicant 
with  becoming  consideration,  without  for  a  moment  losing  sight 
of  the  object  that  Congress  had  in  view  in  limiting  admission  to 
these  shores  to  those  who  are  sound  in  body  and  mind  and  who  are 
without  question  likely  to  find  support  without  depending  in 
whole  or  in  part  on  public  or  private  charity."  ^ 

Aliens  whom  the  examining  inspector  is  doubtful  about  ad- 
mitting are  held  for  examination  before  a  board  of  special  inquiry 
at  each  port  charged  with  hearing  and  deciding  such  cases.  An 
appeal  from  an  adverse  decision  of  the  board  may  be  carried 
through  the  commissioner  of  the  port  and  the  commissioner- 
general  of  immigration  to  the  Secretary  of  Commerce  and  Labor. 
Excluded  aliens  must  be  returned  to  their  homes  by  the  steam- 
ship companies  which  brought  them. 

The  general  supervision  of  the  whole  system  of  immigration  is 
vested  in  the  commissioner-general  of  immigration  in  the  Depart- 
ment of  Commerce  and  Labor.  He  may  estabhsh  rules,  prescribe 
forms  of  reports,  entries,  and  other  papers,  and  he  may  issue  orders 
and  instructions  not  inconsistent  with  the  law,  which  he  may 
deem  useful  in  carrying  out  the  provisions  of  the  immigration  act 
and  in  protecting  aliens  from  fraud  and  loss.  It  is  his  duty, 
from  time  to  time,  to  detail  officers  from  the  immigration  service 
to  make  investigations  of  the  number  of  aUens  detained  in  penal, 
reformatory,  and  charitable  institutions  throughout  the  United 
States  and  to  look  after  the  deportation  of  aliens  who  have  be- 
come public  charges.  At  each  port  of  entry,  there  is  a  commis- 
sioner of  immigration  who  has  under  him  a  staff  of  inspectors  and 
other  officials. 

During  the  ten  years  preceding  the  fiscal  year  1908  there  was 
a  steady  annual  increase  in  the  number  of  immigrant  aliens  who 
entered  the  United  States,  but  the  figures  for  1908  show  a  remark- 
able decline,  only  782,870  being  admitted  for  that  year  as  against 
1,285,349  for  the  year  ending  June  30,  1907.  The  upward  ten- 
dency was,  however,  resumed  during  the  following  year. 

» The  Outlook,  Vol.  LXXXVII,  p.  897. 


390 


American  Government  and  Politics 


Notwithstanding  the  enormous  number  of  immigrants  who 
have  been  admitted  to  the  United  States  since  the  year  i860, 
it  is  interesting  to  note  that  the  percentage  of  foreign  born  during 
this  period  has  remained  practically  stationary,  as  the  following 
figures  show:  ^ 


Census  Year 


i860 
1870 
1880 
1890 
I  goo 


Total 
Popula- 
tion Con- 
sidered 


31,443.321 
38,558,371 
50,155,783 
63,069,756 
76,303,387 


Native  Born 


Number 


27,304,624 
32,991,142 
43,475,840 
53,761,652 
65,843,302 


Per 
Cent 

of 
Total 


86.8 
85.6 
86.7 
85.2 
86.3 


Foreign  Born 


Number 


4,138,697 
5,567,229 
6,679,943 
9,308,104 
10,460,085 


Per 
Cent 

of 
Total 


13-2 

14.4 
13-3 
14.8 
13-7 


Foreign  Commerce  —  Tariff 

The  history  of  tariff  legislation  runs  back  to  the  revenue  act 
passed  by  the  first  federal  Congress  of  1789,  for  that  law,  in  im- 
posing duties  on  foreign  goods  coming  into  the  United  States, 
contained  some  protective  features.  Washington  in  his  message 
of  January,  1790,  recommended  the  promotion  of  such  industries 
as  would  make  the  United  States  "independent  of  others  for 
essential,  particularly  for  military  supplies,"  and  Hamilton  in  his 
famous  Report  of  the  following  year  declared  that  the  real  inter- 
ests of  the  country,  in  his  opinion,  would  be  advanced  rather  than 
injured  by  "the  due  encouragement  of  manufactures."  This 
notion  steadily  gained  ground,  especially  because  the  country 
was  practically  dependent  upon  England  for  manufactured  goods. 

The  War  of  18 12  gave  a  great  impetus  to  this  demand  for  an 
increased  protection  of  American  industries  in  order  to  give  them 
a  start  against  European  competition  and  to  make  the  nation 
economically  independent.  During  the  war,  American  manu- 
facturers, freed  for  a  time  from  English  competition,  leaped 
forward  with  remarkable  strides,  and  when  peace  was  restored 
they  asked  for  continued  protection,  especially  for  the  estabhsh- 
ments  which  they  had  set  up.  The  tariff  bill  of  18 16  was  placed 
upon  a  broad  nationaHst  basis.  Mr.  Calhoun  declared  that  en- 
couragement to  American  manufacture  was  "a  sound  national, 
^  Report  of  the  Secretary  of  Commerce  and  Labor  (1908),  p.  10, 


The  Regulation  of  Commerce  391 

truly  American  policy."  Mr.  Clay  urged:  "The  object  of  pro- 
tecting manufactures  was  tKat  we  might  eventually  get  articles 
of  necessity  made  as  cheap  at  home  as  they  could  be  imported, 
and  thereby  produce  an  independence  of  foreign  countries." 

For  a  time,  this  protectionist  poUcy  was  regarded  as  a  tempo- 
rary makeshift  to  give  our  "infant  industries"  a  start  with  a  view 
to  enabUng  them  ultimately  to  meet  European  competition  in 
a  fair  open  contest.  However,  this  idea  was  slowly  abandoned 
in  the  North  as  the  protected  interests  came  to  be  a  powerful 
factor  in  determining  revenue  policies;  but  in  the  South  the 
tariff  continued  to  be  stoutly  resisted  until  long  after  the  Civil 
War  on  the  ground  that  it  merely  enriched  the  northern  manu- 
facturing states  at  the  expense  of  the  states  which  produced 
cotton  and  raw  materials  — that  is,  made  the  latter  pay  high 
duties  on  manufactured  goods  purchased  in  exchange  for  the  raw 
materials  sold  in  foreign  markets. 

The  Republican  party  in  the  campaign  of  i860  declared  unequiv- 
ocally for  the  protection  of  American  industries,^  and  after  the 
outbreak  of  Civil  War  the  government  was  forced  to  fix  high  tariff 
duties  in  order  to  raise  revenues  —  and  thus  a  combination  of 
circumstances  led  to  the  adoption  of  the  highest  tariff  rates  which 
had  yet  been  made.  This  poHcy  was  continued,  however,  with 
some  slight  modifications  ^  after  the  war,  and  in  1890  a  still  higher 
rate  was  provided  by  the  McKinley  bill,  —  a  rate  which  proved 
to  be  so  high  that  it  produced  a  reaction  throughout  the  country 
that  resulted  in  a  restoration  of  the  Democratic  party  to  power. 
The  Democrats  at  once  set  to  work  on  a  new  tariff  bill,  but  they 
were  unable  to  agree  on  any  very  drastic  reductions,  except  in  the 
duties  on  wool,  so  that  their  tariff  measure  of  1894  (the  Wilson 
bill)  cannot  be  regarded  as  a  serious  departure  from  the  protec- 
tionist pohcy.  Moreover,  it  failed  to  produce  revenues  as  expected, 
and  when  the  Republicans  were  returned  in  1897,  they  revised  the 
tariff  again  by  the  Dingley  bill,  which  was  in  many  respects  an 
advance  in  rates  over  the  McKinley  measure.  This  law  remained 
in  force  until  1909,  when  the  Republicans  at  a  special  session  made 
another  general  revision  without  adopting  any  striking  reductions.^ 

*  Readings,  p.  99. 

^  Note  especially  the  revisions  of  1870,  1872,  and  1883. 
^  For  the  general  character  of  a  tariff  bill,  see  Readings,  p.  337.    The  tariff 
act  of  1909  provided  that  an  additional  duty  of  25  per  cent  ad  valorem,  inight; 


392  American  Government  and  Politics 

During  the  passage  of  this  bill  it  became  evident  that  there  was 
no  very  distinct  Hne  of  division  between  the  Repubhcans  and  the 
Democrats  on  the  tariff,  for  the  latter  on  particular  matters  affect- 
ing their  several  locaUties  were  as  strongly  protectionist  as  the 
former.  Indeed,  the  cleavage  was  within  the  Repubhcan  party, 
for  a  number  of  Repubhcans,  especially  from  the  Middle  West, 
refused  to  vote  for  the  bill  in  its  final  form.^ 

In  connection  with  federal  control  over  commerce,  it  should  be 
noted  that  foreign  commerce  may  also  be  regulated  by  the  Presi- 
dent and  the  Senate  under  their  treaty-making  power.  They 
might,  for  instance,  arrange  with  a  foreign  country  a  treaty  waiv- 
ing some  of  the  provision  of  the  tariff  act,  or  adding  to  the  terms 
of  the  immigration  law.  There  is  no  doubt  that  a  treaty,  duly 
ratified,  is  as  much  a  part  of  the  law  of  the  land  as  is  a  statute, 
and,  as  the  later  expression  of  the  lawgiver  always  replaces  any 
preceding  law  that  is  inconsistent  or  repugnant,  there  is  no  doubt 
that  a  treaty  affecting  foreign  commerce  would  supersede  any 
preceding  act  of  a  Congress,  in  so  far  as  there  might  be  a  conflict. 

The  Department  of  Commerce  and  Labor 

Notwithstanding  the  amount  and  variety  of  federal  legislation 
relative  to  commercial  and  industrial  matters,  it  was  not  until 
1903  that  a  separate  Department  of  Commerce  and  Labor  was 
established  by  the  consolidation  and  reorganization  of  several 
bureaus  and  offices,  including  the  Department  of  Labor;  and 
even  at  the  present  time  the  most  important  branch  of  actual  ad- 
ministration is  vested  in  the  Interstate  Commerce  Commission, 
which  is  independent  of  any  department. 

The  Department  of  Commerce  and  Labor  embraces  a  number 
of  bureaus.  The  bureau  of  immigration  and  naturalization  is 
charged  with  the  inspection  of  immigrants  and  the  supervision 
of  the  laws  controlHng  immigration  and  the  naturalization  of 
foreigners.     The  bureau  of  corporations,  as  we  have  seen,  is  prin- 

be  imposed  upon  certain  imports  at  the  discretion  of  the  President,  thus 
putting  it  in  his  power  to  meet  discriminations  on  the  part  of  foreign  coun- 
tries. To  assist  the  President  in  securing  information  with  regard  to  this  and 
other  matters  intrusted  to  his  care,  a  board  of  three  members  was  instituted. 
This  board  was  organized  in  September,  1909. 

*  For  arguments  on  the  tariff,  see  Seager,  Introduction  to  Economics ^ 
pp.  371  ff. 


The  Regulation  of  Commerce  393 

cipally  engaged  in  collecting  information  relative  to  the  conduct 
of  the  great  corporations  and  combinations  doing  interstate 
business.'  The  bureau  of  labor  is  charged  with  acquiring  and 
diffusing  among  the  people  of  the  United  States  useful  informa- 
tion on  subjects  connected  with  labor,  in  the  most  general  and 
comprehensive  sense  of  the  word,  including  the  relations  of  capi- 
tal and  labor,  hours  of  work,  wages,  labor  legislation,  the  means 
of  promoting  the  material,  intellectual,  and  moral  prosperity  of 
the  working  class.  The  bureau  of  the  census  has  control  of  the 
decennial  census,  and  owing  to  the  extensive  operations  now 
included  in  that  huge  undertaking,  the  bureau  has  a  large  force  en- 
gaged continually  on  statistical  and  other  problems.  Commer- 
cial statistics  and  consular  reports  and  other  data  relative  pri- 
marily to  foreign  commerce,  however,  are  in  charge  of  the  special 
bureau  of  statistics.- 

To  assist  American  manufacturers  in  the  fierce  international 
struggle  for  markets.  Congress  created,  in  1905,  the  bureau  of 
manufactures,  charged  with  collecting  precise  information,  as  to 
the  demands  for  goods  in  all  important  foreign  countries.  In 
addition  to  the  several  hundred  American  consular  officers  en- 
gaged in  gathering  such  information,  the  bureau  has  a  number  of 
expert  special  agents  in  certain  fields.  It  pubUshes  reports  on 
opportunities  for  selling  American  products  abroad;  it  has  in 
process  of  compilation  a  commercial  directory  of  the  whole  world; 
it  collects  and  translates  the  tariff  laws  of  other  countries;  and 
it  provides  for  the  translation  of  foreign  documents  and  decrees 
useful  to  American  business  men.  Thus  the  federal  government 
is  a  clearing  house  for  information  on  foreign  commerce.^ 

^  Except  carriers  subject  to  the  control  of  the  Interstate  Commerce  Com- 
mission. 

^  Among  the  other  branches  of  the  Department  of  Commerce  and  Labor 
may  be  included  the  bureau  of  navigation,  supervising  (through  shipping 
commissioners  at  the  principal  ports)  contracts  between  seamen  and  masters, 
and  the  conditions  of  vessels;  the  steamboat  inspection  service,  charged 
with  testing  the  seaworthiness  of  steam  and  saihng  vessels;  the  Hghthouse 
board;  the  bureau  of  fisheries,  which  supervises  fish  culture  and  the  conser- 
vation of  fishery  resources;  the  Alaska  seal- fur  service;  the  coast  and  geodetic 
survey;  and  the  bureau  of  standards,  designed  to  make  possible  uniform  and 
exact  measures  by  the  improvement  of  standard  measuring  instruments  and 
the  methods  of  measurement. 

^  Congress  has  full  power  to  regulate  commerce  with  the  Indians,  and 
until  1 87 1  it  was  the  policy  to  deal  with  them  as  tribes  by  means  of  treaties. 


394  American  Government  and  Politics 


The  National  Postal  Service 

Post-offices  and  post-roads  and  the  transmission  of  mail  may- 
be properly  considered  in  relation  to  the  power  of  the  federal  gov- 
ernment to  control  interstate  commerce,  although  a  special  war- 
rant for  this  branch  of  administration  is  contained  in  a  separate 
clause  of  the  Constitution.  Under  the  Articles  of  Confederation, 
Congress  merely  had  the  power  to  estabUsh  and  regulate  the  pos- 
tal business  from  one  state  to  another;  but  in  order  to  facihtate 
the  increase  of  intercourse  throughout  the  nation,  the  power  of 
managing  not  only  the  interstate  mails,  but  the  transmission  of 
all  mail  matter  whatsoever,  was  vested  in  Congress. 

Those  who  hold  to  a  strict  interpretation  of  the  Constitution 
contend  that  the  power  to  estabHsh  post-offices  and  post-roads 
means  only  the  right  to  direct  where  post-offices  shall  be  main- 
tained and  on  what  roads  mails  shall  be  carried;  but  in  practice, 
it  has  been  shown  that  the  power  includes  the  right  to  construct 
buildings;  and  Story  declares  that  there  is  no  reason  why  Con- 
gress could  not  build  and  operate  roads  for  the  purpose  of  trans- 
mitting mails.  "If  it  be  the  right  and  duty  of  Congress,"  he 
asks,  "to  provide  adequate  means  for  the  transportation  of  the 
mails  wherever  the  public  good  requires  it,  what  Hmit  is  there  to 
these  means  other  than  that  they  are  appropriate  to  the  end  ?"^ 
Professor  Burgess,  on  the  other  hand,  holds  that  it  is  not  settled 
law  that  the  government  may  build,  buy,  and  own  railroads,  or 
make  the  telegraph  business  a  governmental  monopoly.^   " 

The  transmission  of  mail  matter  is  exclusively  vested  in  the 
federal  government  —  that  is.  Congress  can  prohibit  its  carriage 
by  private  companies.     The  question  as  to  what  can  be  properly 

Since  that  year  federal  relations  with  the  Indians  have  been  conducted  by 
the  President  and  Congress  through  agreements  and  contracts.  Those 
Indians  who  have  left  their  tribes  and  settled  down  Uke  white  inhabitants 
are  recognized  as  citizens,  but  those  who  remain  with  their  people  are  not 
citizens.  The  total  Indian  population  according  to  the  census  of  1900  was 
266,760,  a  decrease  of  over  6000  since  1890.  The  figures  of  1908,  however, 
show  an  increase  to  300,412.  Most  of  these  Indians  reside  in  reservations, 
of  which  there  are  about  140.  The  federal  government  supervises  the  Indians 
hrough  the  bureau  of  Indian  affairs  in  the  Department  of  the  Interior,  and 
makes  large  grants  of  money  to  feed,  clothe,  and  educate  them. 

^  Commentaries,  Vol.  II,  sec.  1141. 

^Political  Science  and  Constitutional  Law,  Vol.  II,  p.  141, 


The  Regulation  of  Commerce  395 

regarded  as  mail  matter  has  been  answered  by  the  Supreme 
Court  to  the  effect  that  it  is  Hmited  to  letters,  papers,  and  other 
things  which  were  commonly  reckoned  as  mail  at  the  time  when 
the  Constitution  was  framed.^  Under  this  power  to  regulate 
the  transmission  of  mail  matter,  Congress  may  exclude  from  the 
mails  obscene,  lewd,  and  lascivious  literature  or  matter  relating 
to  lotteries,-  but  it  cannot  prohibit  the  carriage,  by  private  com- 
panies, of  any  matter  which  it  may  so  exclude.^ 

Under  this  general  power  to  establish  post-offices  and  post- 
roads,  the  federal  government  has  built  up  a  vast  and  complicated 
system.  We  began  in  1789  with  75  post-offices,  or  one  for  every 
50,000  persons  in  round  numbers,  and  at  the  close  of  the  nine- 
teenth century  there  were  more  than  70,000  post-offices,^  or  one 
for  about  every  1000  inhabitants.  The  postal  charges  in  1792 
ranged  from  six  cents  for  a  single  sheet  transmitted  thirty  miles 
to  twenty-five  cents  for  the  same  carried  more  than  450  miles. 
To-day  an  ordinary  letter  may  be  sent  from  Maine  to  Manila  or 
from  San  Francisco  to  London  or  Berlin  for  two  cents.^  In  the 
first  year  of  its  existence  under  the  Constitution,  the  Post-Office 
Department  received  $37,000  and  expended  $32,000;  for  the 
fiscal  year  ending  in  June,  1908,  the  postal  receipts  amounted  to 
$191,478,663.41,  and  the  expenditures  were  $208,351,886.15, 
showing  a  deficit  of  more  than  $16,000,000. 

The  post-office  not  only  carries  letters,  papers,  post-cards,  and 
parcels  limited  in  size;  it  transmits  money  also.  The  registry 
service  was  estabHshed  by  Congress  in  1855;  and  it  is  now  pos- 
sible for  any  one,  by  the  payment  of  ten  cents  in  addition  to  the 
regular  postage,  to  secure  the  registration  of  a  letter  at  every 
point  in  its  journey,  a  return  receipt  from  the  person  to  whom  it 
is  sent,  and  an  insurance  up  to  the  value  of  $50  —  a  system  prac- 
tically guaranteeing  the  proper  delivery.  In  1864,  Congress  es- 
tabUshed  post-office  money  orders,  by  which  payment  to  the  ad- 
dressee at  the  other  end  of  the  line  is  absolutely  guaranteed  and 
practically  every  possibility  of  loss  obviated. 

'  Ex  parte  Jackson,  96  U.  S.  R.,  727. 
^  In  re  Rapier,  143  U.  S.  R.,  no. 

3  Except,  of  course,  so  far  as  interstate  commerce  is  concerned;  but  here  a 
question  as  to  freedom  of  the  press  might  arise. 

*  Post-offices  are  graded  into  four  classes  on  a  basis  of  receipts. 
'The  one-cent  post-card  was  introduced  in  1872. 


39^  American  Government  and  Politics 

Congress  has  made  special  arrangements  for  the  transmission 
of  printed  matter,  in  order  to  encourage  the  establishment  of 
periodicals  and  their  circulation  among  the  people.  Newspapers 
are  carried  free  within  the  county  of  publication,  except  in  cities 
having  free  delivery;  ^  and  a  bulk  rate  of  one  cent  a  pound  is 
provided  for  periodicals  entered  at  the  post-office  as  second-class 
matter,  i.e.,  newspapers  and  other  periodical  pubHcations  regu- 
larly issued,  at  stated  intervals,  and  "published  for  the  dissemina- 
tion of  information  of  a  public  character,  or  devoted  to  literature, 
the  sciences,  arts,  or  some  special  industry,  and  having  a  legitimate 
list  of  subscribers."  ^  The  bulk  rate  of  one  cent  a  pound  on  this 
matter  is  far  below  the  actual  cost  of  transmission,  and  is  largely 
responsible  for  the  annual  deficit  mentioned  above.  In  1907  the 
first  class  mail  (letters,  etc.)  contributed  12.81  per  cent  of  the 
total  weight  of  mail  and  75.74  per  cent  of  the  revenue,  while 
the  second  class  contributed  63.91  per  cent  of  the  weight  and 
5.19  per  cent  of  the  revenue.  There  is  also  an  enormous  amount 
of  the  federal  government's  mail  carried  free. 

It  is  contended,  however,  by  those  who  oppose  the  increase 
in  the  rates  for  newspapers  and  periodicals  that  this  cost  of 
transportation  is  excessively  high  on  account  of  the  unbusiness- 
like contracts  which  the  government  makes  with  railway  com- 
panies. The  case  is  put  this  way  by  a  writer  in  1904:  "  Since 
1878  there  has  been  no  reduction  in  the  rate  provided  by  law 
for  railroad  transportation  of  mails,  which  figures  out,  per  ton 
mile,  $1.17  on  a  minimum  of  200  pounds  per  day,  18.7  cents 
on  a  daily  average  of  5000  pounds,  and  5.8  cents  on  each  ad- 
ditional 2000  pounds  average;  though  an  express  company  will 
carry  for  other  patrons  a  hundred  pounds  a  thousand  miles  for 
$3.50,  being  7  cents  per  ton  mile  .  .  .  and  the  railroads  them- 
selves carry  a  hundred  pounds  of  freight  a  thousand  miles  for 
from$i  down  to  35  cents,  being  from  2  cents  to  .7  cent  per  ton 
mile.  A  passenger  is  individually  ticketed  and  100  pounds 
baggage  individually  checked  at  the  mileage  rate  of  2  cents  per 

*  It  should  be  noted  that  this  rule  giving  free  circulation  to  newspapers 
does  not  apply  to  cities  within  the  county  of  publication,  having  special 
delivery,  and  thus  it  comes  about  that  a  paper  published  in  New  York  must 
pay  one  cent  for  each  copy  circulated  in  that  county,  but  only  one  cent  a 
pound  for  papers  delivered  in  San  Francisco,  or  Portland,  Oregon. 

^  Publications  designed  primarily  for  advertising  purposes  or  for  free 
circulation  or  for  circulation  at  nominal  rates  are  excluded  from  this  class. 


The  Regulation  of  Commerce  397 

mile,  equivalent  to  16  cents  per  ton  mile,  while  commuters  are 
carried  as  low  as  ^  cent  a  mile,  or  4  cents  a  ton  mile."  ^  An  act 
of  March  2,  1907,  made  some  provision  for  a  reduction  in  rail- 
road postal  rates;  but  further  reductions  are  being  demanded. 
It  is  still  claimed  that  were  the  government  as  anxious  to  make 
right  terms  with  railways  as  to  afford  proper  service  to  the 
public  there  need  be  no  increase  in  postal  rates.  The  whole 
question  is  now  before  Congress. 

The  development  of  free  deUvery  has  been  one  of  the  most  re- 
markable features  in  the  evolution  of  our  postal  system.  In 
1863,  it  was  established  in  all  cities  having  at  least  50,000  inhab- 
itants, and  it  has  now  been  extended  to  cities  having  10,000  in- 
habitants. In  1885  a  system  was  introduced  by  which  immediate 
"special"  delivery  on  receipt  at  the  post-ofhce  of  the  addressee 
can  be  secured  by  the  payment  of  ten  cents,  in  addition  to  the 
ordinary  postage. 

A  third  branch  of  postal  deUvery  has  now  been  instituted  for 
country  districts.  This  "rural  free  delivery  service"  began  ex- 
perimentally in  1897  with  an  appropriation  of  $40,000  and  the 
establishment  of  forty-four  routes.  The  expenditure  for  the  fiscal 
year,  ending  June  30,  1897,  was  only  $14,840,  but  in  1908  the 
amount  was  more  than  $34,000,000,  and  there  were  in  operation 
in  that  year  39,516  routes,  distributing  nearly  two  billion  pieces 
of  mail  to  more  than  18,000,000  people  residing  in  rural  districts. 

The  incidental  effects  of  this  rural  service  have  been  of  great 
importance,  for,  in  addition  to  relieving  the  tedium  and  isolation 
of  country  Uf e,  it  is  a  powerful  factor  in  the  improvement  of  public 
roads  The  Post-Office  Department  is  steadily  insisting  that  the 
routes  covered  by  rural  delivery  shall  be  maintained  in  good  con- 
dition throughout  all  the  seasons  of  the  year,  and  in  response  to 
this  pressure,  state  legislatures  are  increasing  their  appropria- 
tions for  the  building  and  improvement  of  highways. 

Although  Congress  has  provided  for  the  transmission  of  books 
and  small  parcels  of  merchandise  by  mail,  the  restrictions  are 
so  narrow  and  the  rates  so  high  as  to  lead  to  a  demand  for  the 
estabhshment  of  a  special  system,  a  "parcels  post.'.'  In  Great 
Britain  parcels  not  more  than  three  feet  long  can  be  sent  for  six 
cents  for  the  first  pound  and  two  cents  for  each  additional  pound 

^  Reinsch,  Readings,  p.  385. 


98  American  Government  and  Politics 


up  to  the  weight  of  eleven  pounds.  Measures  providing  for  a 
similar  post  have  often  been  introduced  in  Congress,  but  they 
have  been  defeated  by  the  activities  of  express  companies  and 
other  common  carriers,  who  contend  that  it  would  mean  almost 
the  destruction  of  their  private  business.  Moreover,  since  the 
establishment  of  the  rural  free  deHvery  service,  the  merchants  of 
small  towns  are  protesting  against  the  parcels  post  on  the  ground 
that  it  would  enable  the  great  department  stores  of  the  cities  to 
undersell  them.  It,  therefore,  seems  practically  impossible  at 
the  present  time  to  secure  the  establishment  of  this  service,  in  spite 
of  the  enormous  saving  and  convenience  which  it  would  undoubt- 
edly offer  the  public. 

Another  function  generally  performed  by  the  post-office  in 
foreign  countries  is  that  of  acting  as  a  savings  bank  receiving 
deposits  of  money  up  to  a  certain  amount  and  paying  interest 
thereon.  In  order  to  encourage  thrift  and  secure  absolute  safety 
for  the  savings  of  the  small  depositors,  it  has  been  pro- 
posed within  recent  years  to  establish  such  an  institution  in 
the  United  States.^  The  system  was  recommended  by  the  Post- 
master-General in  his  Report  of  1908,  in  which  he  called  attention 
to  the  fact  that  more  than  $3,600,000,000  was  deposited  in 
private  savings  banks  throughout  the  United  States.  He  urged 
that  inasmuch  as  there  were  at  least  thirty-two  states  inade- 
quately supplied  with  such  concerns,  not  less  than  half  a  bilUon 
dollars  was  kept  in  hiding  —  a  sum  which  could  be  brought  into 
circulation  through  the  agency  of  postal  savings  banks.  As  an 
evidence  of  the  demand  for  this  new  institution,  he  cited  the  fact 
that  American  citizens  during  the  previous  year  bought  no  less 
than  $8,000,000  worth  of  postal  orders  payable  to  themselves,  in 
order  to  secure  safety  for  their  money.  He  accordingly  approved 
the  measure,  then  before  the  Senate,  providing  that  post-offices 
should  receive  deposits  and  turn  the  funds  over  to  national  banks, 
requiring  the  latter  to  pay  not  less  than  2\  per  cent  interest,  of 
which  2  per  cent  was  to  go  to  depositors  of  sums  up  to  $500.^  • 

^The  Republican  platform  of  1908  stated  that  the  party  favored  the 
establishment  of  a  postal  savings  bank  system  for  the  convenience  of  the 
people  and  the  encouragement  of  thrift;  and  the  Democratic  party  favored 
the  establishment  of  this  bank,  in  case,  the  scheme  of  guaranteed  bank  de- 
posits should  not  be  adopted. 

2  The  matter  is  now  (19 10)  pending  in  Congress. 


The  Regulation  of  Commerce  399 


The  Post-Office  Department 

The  Post-Office  Department  is  a  vast  business  concern  charged 
with  the  supervision  of  an  army  of  employees,  some  stationed  in 
Washington  and  others  scattered  throughout  the  United  States 
—  in  the  thousands  of  post-offices  and  on  the  railway  trains  and 
other  vehicles  for  mail  transmission.  The  direction  of  affairs 
is  vested  in  the  Postmaster- General,  who  appoints  depart- 
mental employees  under  the  civil  service  rules,  nominates  to  the 
President  a  large  number  of  local  postmasters  (but  not  with- 
out consulting  interested  members  of  Congress),^  manages  postal 
finances,  and  hears  appeals  from  subordinates.  The  Postmaster- 
General  has  four  assistants,  each  of  whom  is  responsible  for  one  of 
the  great  branches  of  the  postal  service.  The  first  has  charge  of 
appointments  of  postmasters,  the  estabhshment  and  discontinu- 
ance of  offices,  the  adjustment  of  salaries  and  allowances  for  rent, 
clerk  hire,  and  other  expenses,  and  the  city  dehvery  service. 
The  second  assistant  looks  after  all  matters  pertaining  to  the 
transportation  of  mails;  appointments  to  the  railway  mail  service; 
authorization  of  transportation  by  railways  and  other  carriers; 
the  making  of  contracts  for  carriage;  the  inspection  of  the  carry- 
ing service;  and  the  equipment  of  the  service  with  the  devices 
necessary  for  the  conduct  of  its  business.  The  third  assistant  is 
the  finance  officer  of  the  Department,  and  he  is  in  charge  of  the 
accounts,  the  issue  of  stamps  and  money  orders,  the  registry 
system,  and  classification  of  mail  matter.  The  fourth  assistant 
superintends  the  divisions  of  rural  deUvery,  supplies,  dead  letters, 
and  topography.  The  administration  of  the  post-office  is  greatly 
hampered  by  the  fact  that  Congress  controls  rates  and  locates 
buildings,  under  the  pressure  of  "  politics,"  often  with  slight  re- 
gard for  economy  or  efficiency. 

The  postal  authorities  possess  the  power  to  exclude  from  the 
mails  the  letters  and  papers  of  persons  and  corporations  practis- 
ing fraud  and  deception,  and  also  the  power  to  prohibit  the  use  of 
the  mails  for  matter  tending  to  encourage  crime  and  immorahty. 
When  any  person  attempts,  by  fraudulent  methods,  to  procure 
money  or  property  through  the  mails,  the  postal  authorities 
simply  withdraw  the  f)rivileges  of  the  mails  absolutely.     This  is 

'  He  also  appoints  many  postmasters  himself. 


400  American  Government  and  Politics 

done  by  instructing  the  postmaster  at  the  place  where  the  fraud 
is  practised  to  stamp  on  all  letters  addressed  to  the  person  in 
question  the  word  "fraudulent";  and  return  them  to  the  writers 
if  there  is  a  return  card,  or  to  the  Dead  Letter  Office.  The  Post- 
Office  Department  employs  inspectors  to  conduct  investigations 
into  the  misuse  of  the  mails,  and  make  reports  to  the  Postmaster- 
General.  These  reports  are  the  principal  evidence  upon  which 
''fraud  orders"  are  based.  In  practice  the  postal  authorities 
serve  notice  on  persons  charged  with  abusing  mail  privileges,  and 
inform  them  of  the  nature  of  the  accusation.  If  an  accused 
wishes  to  make  defence,  he  must  go  to  Washington  and  present 
his  case.  It  has  been  uniformly  held  by  the  courts  that  the  de- 
cision of  the  Postmaster- General  on  questions  of  fact  in  fraud 
order  cases  is  not  subject  to  judicial  review.^  The  Court,  how- 
ever, will  review  the  question  as  to  whether  a  particular  scheme 
is  fraudulent. 

The  exercise  of  this  large  power  has  been  entirely  reprobated  by 
many  champions  of  individual  liberty,  who  hold  that  it  is  not  the 
business  of  the  government  to  act  as  the  paternal  guardian  of  the 
citizens,  protecting  them  from  their  own  folly  against  the  machina- 
tions of  patent  medicine  fakirs  and  "get-rich"  swindlers;  or  in 
guiding  them  as  to  the  proper  literature  for  the  good  of  their 
morals.  On  the  other  hand,  it  is  asked,  with  a  good  deal  of 
plausibility,  whether  the  government  should  permit  the  use  of 
the  mails  by  fraudulent  concerns,  and  thus  become  a  party  to  the 
deception  of  innocent  persons.^ 

'  Readings,  p.  204. 

^  For  example,  a  few  years  ago  a  company  in  New  York  began  to  advertise 
foimtain  pens  at  $2.50  apiece,  and  promised  at  the  same  time  to  employ  every 
purchaser  of  a  pen  at  $8  a  week  in  letter- writing,  "It  was  an  endless  chain 
scheme,  growing  constantly  wider.  All  revenues  were  derived  from  the  sale 
of  the  pens.  This  inverted  financial  pyramid  was  not  thought  stable  by  the 
post-office  people,  and  the  concern  was  put  out  of  business  by  a  fraud  order 
in  October,  1902,  after  having  secured  19,000  patrons."  Reinsch,  Readings, 
p.  392. 


CHAPTER  XX 

NATIONAL  RESOURCES 

The  Federal  Land  Policy 

The  United  States  at  the  close  of  the  War  for  Independence 
possessed  an  enormous  domain  of  unsettled  lands  beyond  the 
Alleghanies,  and  from  time  to  time  new  areas  have  been  added  by- 
purchase  and  conquest.^  It  is  estimated  that  the  United  States 
has  possessed  at  one  time  or  another  a  public  domain  of  no  less 
than  2,825,000  square  miles  —  an  area  more  than  ten  times  the 
size  of  the  German  empire  and  more  than  twenty  times  the  size 
of  Great  Britain  and  Ireland.  In  other  words,  over  two-thirds 
of  the  total  continental  area  of  the  United  States,  including 
Alaska,  has  been  at  some  time  during  our  history  public  property. 
In  i860  we  had  a  pubhc  domain  of  1,055,911,288  acres,  and  in 
spite  of  the  enormous  grants  which  have  been  made  to  railway 
companies,  corporations,  and  private  persons,  the  United  States 
possessed  in  1909  a  national  estate  of  731,354,081  acres.^ 

The  history  of  the  disposal  of  our  great  domain  forms  one  of 
the  most  striking  and  important  chapters  in  the  history  of  the 
United  States  —  a  chapter  which  is  unhappily  marred  by  a 
record  of  wasteful  methods,  lack  of  foresight,  political  corruption, 
and  fraudulent  transactions.  This  chapter  also  contains  a 
record  of  the  peaceful  conquest  and  settlement  of  the  Great  West 

'  In  addition  to  the  lands  already  granted  to  private  persons,  there  were 
large  public  domains  in  most  of  the  territorial  additions  to  the  United  States. 
Inasmuch  as  Texas  had  organized  an  independent  government  and  had  won 
recognition  as  an  independent  commonwealth  before  admission  to  the  Union, 
it  had  already  made  provision  for  the  public  lands  and  was  allowed  to  re- 
tain them.  The  acquisition  of  Hawaii,  Porto  Rico,  and  the  Philippine 
Islands  in  1898  brought  very  little  additional  public  land  to  the  federal  gov- 
ernment, as  most  of  it  had  already  been  granted  away  to  private  persons. 

^  Insular  possessions  are  not  included  in  this  estimate;  but  Alaska  is.  Report 
of  the  Secretary  of  the  Interior,  1909,  p.  7.  Of  course  Alaska  has  been  added 
since  i860. 

2D  401 


402  American  Government  and  Politics 

by  tens  of  thousands  of  hardy  pioneers  who  built  their  prosperous 
homes  upon  the  broad  acres  sold  to  th^m  at  a  low  price  by  the 
federal  government. 

In  the  beginning  of  our  history,  Congress  made  no  attempt  to 
dispose  of  the  western  lands  in  small  lots  to  actual  homestead- 
seekers.  On  the  contrary,  the  government  decided  to  sell  the 
land  as  expeditiously  as  possible  "for  the  common  benefit  of  the 
United  States"  —  that  is,  to  extinguish  the  pubUc  debt;  and 
accordingly  large  quantities  were  sold  on  contract,  principally 
to  speculative  land  companies,  which  in  turn  subdivided  and  sold 
in  small  lots.  At  length,  in  1800,  the  government  began  a  new 
poHcy  of  offering  for  sale  on  credit  portions  of  the  public  domain 
in  lots  small  enough  to  encourage  entry  and  settlement  by  home- 
seekers;  and  in  1820  a  system  of  cash  sales  was  adopted,  and  pur- 
chasers were  allowed  to  buy  plots  of  any  size. 

The  RepubHcan  party,  in  its  platform  of  i860,  protested  against 
a  land  poHcy  "  which  regards  the  settlers  as  paupers  or  suppUants 
for  pubUc  bounty";  and  demanded  the  passage  of  a  complete  and 
satisfactory  homestead  measure.  In  1862,  Congress  complied 
with  this  demand  by  passing  the  Homestead  Act,  which  reserved 
the  arable  land  for  settlers  and  provided  that  any  head  of  a  family 
might  secure  a  quarter  of  a  section  of  land,  that  is,  160  acres,  by 
residing  on  it  for  a  period  of  five  years.  ^ 

In  spite  of  these  attempts  to  reserve  the  pubHc  lands  for  bona- 
fide  home-seekers,  enormous  areas  have  been  secured  by  land 
companies,  either  by  the  purchase  of  the  small  grants  made  to 
private  parties  or  by  fraud.  "Our  public  lands,  whose  highest 
use  is  to  supply  homes  for  our  people,"  said  President  Roosevelt, 
*'  have  been  and  still  are  being  taken  in  great  quantities  by  large 
private  owners  to  whom  home-making  is  at  the  very  best  but  a 
secondary  motive,  subordinate  to  the  desire  for  profit.  To  allow 
the  public  lands  to  be  worked  by  the  tenants  of  rich  men  for  the 
profit  of  the  landlords,  instead  of  by  freeholders  for  the  Hvelihood 
of  their  wives  and  children,  is  little  less  than  a  crime  against  our 
people  and  our  institutions.  The  great  central  fact  of  the  public 
land  situation  ...  is  that  the  amount  of  pubhc  land  patented 

^  This  act,  however,  was  only  supplementary  to  the  preemption  system 
(1841  to  1 891)  according  to  which  the  head  of  a  family  might  enter  a 
quarter  of  a  section  by  paying  $200  and  Uving  upon  it  for  a  period  of  six 
months.    Under  the  act  of  1862  each  homestead-seeker  had  to  pay  a  fee  of  $40. 


National  Resources  403 

by  the  government  to  individuals  is  increasing  out  of  all  propor- 
tion to  the  number  of  new  homes."  ^ 

The  pubHc  lands  which  have  not  been  granted  to  land  com- 
panies and  to  private  persons  have  been  disposed  of  in  several 
ways.^  In  the  first  place,  whenever  a  new  state  has  been  admitted 
to  the  Union  it  has  received  from  the  federal  government  a  large 
portion  of  pubHc  domain  within  its  area.  Previous  to  1850,  it 
was  the  practice  of  the  federal  government  to  give  to  each  state 
one  thirty-sixth  of  the  public  lands  within  its  borders  for  school 
purposes;  and  since  1850  the  amount  has  been  doubled.'  In 
i860  Congress  granted  to  each  state  an  amount  of  land  according 
to  its  representation  in  Congress,  to  be  devoted  to  the  support  of 
an  agricultural  college.  In  addition  to  these  grants  for  edu- 
cational purposes.  Congress  has  given  to  the  various  states  from 
time  to  time  large  areas  to  be  used  in  the  making  of  internal  im- 
provements. 

Finally  there  are  the  concessions  which  have  been  made  to 
railway  corporations.  It  is  estimated  that  under  the  various 
railway  acts  no  less  than  155,504,992  acres  have  been  given  to 
railways,  and  that  more  than  one-half  of  this  amount  has  been 
Actually  taken  up  by  them.  Most  of  this  land,  however,  has 
found  its  way  into  the  hands  of  homestead-seekers,  for  it  has  been 
the  practice  of  the  railways  to  sell  their  lands  in  small  amounts 
at  reasonable  prices  in  order  to  encourage  actual  settlement.  It 
has  been  profitable  for  them  to  develop  population  and  industries 
along  their  Hues;  and  they  have  accordingly  used  their  grants  for 
the  rapid  upbuilding  of  the  West."* 

While  the  government  makes  some  distinction  between  ordi- 
nary arable  lands  and  the  lands  which  are  valuable  for  timber, 
stone,  and  minerals,  its  policy  from  the  very  beginning  has  sac- 
rificed the  public  domain  very  largely  to  prospectors  and  specu- 
lators.   Congress  has  provided  that  the  timber  lands  open  for 

'  The  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
Vol.  XXXI,  pp.  8-^. 

^  Large  grants  were  made  to  the  soldiers  of  the  Revolutionary  and 
Mexican  wars. 

3  The  six  states  admitted  in  1890-91  were  given  considerably  more  than 
one-eighteenth  of  the  public  lands  within  their  borders. 

''  Reference:  J.  B.  Sanborn,  Congressional  Grants  of  Land  in  Aid  of  Rail- 
ways, University  of  Wisconsin  Publications  (Economics),  Vol.  II,  No.  3. 


404  American  Government  and  Politics 

entry  must  be  sold  only  in  small  lots  to  single  persons  or  com- 
panies for  their  respective  benefit,  but  as  a  matter  of  fact  the 
entries  made  by  private  persons  rapidly  pass  into  the  hands  of 
large  timber  companies.  A  bare  list  of  the  timber  and  land 
frauds  which  have  been  unearthed  by  the  government  would  fill 
a  volume  of  no  mean  proportions.  Mineral  lands  have  been  like- 
wise disposed  of  ostensibly  to  private  individuals  in  small  lots,  but 
in  actual  practice  to  large  corporations. 

The  reckless  and  fraudulent  waste  of  our  rich  mineral  resources 
has  long  been  a  standing  disgrace  to  the  federal  government. 
President  Cleveland  in  his  message  of  1886  declared  that  ''the 
object  of  the  laws  was  perverted  under  the  system  of  cash  sales 
from  a  distribution  of  lands  among  the  people  to  an  accumulation 
of  land  capital  by  wealthy  and  speculative  persons."  Twenty 
years  later,  President  Roosevelt,  in  his  message  of  February  3, 
1907,  called  attention  to  the  waste  of  our  mineral  resources,  and 
recommended  legislation  providing  for  the  separation  of  the  title 
to  the  surface  of  the  land  from  the  title  to  the  underljdng  mineral 
fuels,  in  order  that  the  latter  may  be  kept  for  public  benefit, 
even  if  the  former  is  sold.  In  his  report  for  the  year  1908,  the 
Secretary  of  the  Interior  said:  "It  is  most  earnestly  to  be  hoped* 
that  Congress  at  this  session  will  consider  favorably  the  pending 
measure  which  has  for  its  purpose  the  segregating  of  the  coal 
from  the  surface  and  the  sale  or  lease  of  the  coal  in  such  quanti- 
ties as  will  permit  its  development  in  accordance  with  the  needs 
of  the  country,  and  in  a  great  measure  prevent  private  interests 
from  either  monopolizing  or  .holding  for  speculative  purposes  the 
great  fuel  deposits  remaining  in  the  pubUc  domain.  The  pending 
bill  provides  for  alternate  methods  of  sale  and  lease,  so  that  the 
system  best  adapted  to  any  special  section  of  the  country  may  be 
used." 

The  administration  of  the  public  lands  is  in  charge  of  the  com- 
missioner of  the  general  land  office  (Interior  Department)  who 
supervises  their  survey  and  sale.  For  the  purpose  of  adminis- 
tration the  states  and  territories  having  considerable  public 
domain  are  laid  out  into  districts,  in  each  of  which  there  is  a  local 
land  office  in  charge  of  registers  and  receivers,  who  dispose  of 
public  lands  under  the  laws  and  receive  the  funds  accruing  from 
these  sales.  Under  an  appropriation  of  Congress  which  went 
into  effect  on  May  27,  1908,  the  force  of  special  agents  in  charge 


National  Resources 


405 


of  the  public  lands  was  greatly  increased  for  the  purpose  of  more 
carefully  policing  the  public  domain  and  seeing  that  fraudulent 
land  transactions  were  prevented.^ 

The  Conservation  Movement 

Under  the  historic  land  poUcy  sketched  above,  little  or  no 
thought  was  taken  of  the  ultimate  result,  as  the  nation's  heri- 
tage in  lands,  forests,  and  minerals  was  being  bartered  away  to  a 
considerable  extent  to  shrewd  and  enterprising  fortune  hunters  — 
to  say  nothing  of  the  enormous  areas  that  have  been  'actually 
stolen.  It  is  true  that  the  policy  of  rapid  alienation  has  been 
the  chief,  and  to  a  large  extent  necessary,  factor  in  the  rapid 
development  of  the  West,  but  nevertheless  the  Hon.  Theodore 
Burton  spoke  correctly  when  he  said  in  a  letter  to  President 
Roosevelt  in  1907:  — 

Hitherto  our  national  policy  has  been  one  of  almost  unrestricted 
disposal  of  natural  resources,  and  this  in  more  lavish  measure  than  in 
any  other  nation  in  the  world's  history;  and  this  policy  of  the  federal 
government  has  been  shared  by  the  constituent  states.  Three  con- 
sequences have  ensued:  First,  unprecedented  consumption  of  natural 
resources;  second,  exhaustion  of  these  resources  to  the  extent  that  a 
large  part  of  our  available  public  lands  have  passed  into  great  estates 
or  corporate  interests,  our  forests  are  so  far  depleted  as  to  multiply  the 
cost  of  forest  products,  and  our  supplies  of  coal  and  iron  are  so  far  re- 
duced as  to  enhance  prices;  and  third,  unequalled  opportunity  for 
private  monopoly,  to  the  extent  that  both  federal  and  state  sover- 
eignties have  been  compelled  to  enact  laws  for  the  protection  of  the 
people."^ 

We  have  in  fact  arrived  at  a  point  where  the  exhaustion  of 
some  of  our  important  natural  resources  is  approaching,  if  the  old 
wasteful  methods  of  exploiting  them  are  allowed  to  continue; 
and  the  realization  of  this  fact  has  made  the  conservation  and 
right  use  of  our  natural  opportunities  one  of  the  most  vital  ques- 

^  During  the  fiscal  year  ending  June  30,  1908,  a  little  more  than  19,000,000 
acres  of  public  lands  were  entered;  the  total  cash  receipts  from  the  disposal 
of  lands  during  that  year  were  about  $12,500,000,  which  netted  the  treas- 
ury a  balance  of  a  little  more  than  $10,000,000;  during  that  year  also  many 
additional  forests  were  created,  making  a  total  forest  area  of  167,976,886 
acres. 

^  Proceedings  of  a  Conference  of  Governors,  p.  viii  (Official  Report) . 


4o6  American  Government  and  Politics 

tions  to  be  solved  by  the  present  generation.  Indeed,  as  Presi- 
dent Roosevelt  put  it,  "the  conservation  of  our  natural  resources 
and  their  proper  use  constitute  the  fundamental  problem  which 
underlies  almost  every  other  problem  of  our  national  life."  ^ 

This  issue  was  first  seriously  brought  to  the  attention  of  the 
general  pubhc  by  President  Roosevelt  in  his  numerous  addresses; 
and  a  practical  step  toward  the  solution  of  the  problem  was  taken 
by  him  in  the  appointment,  in  1907,  of  the  Inland  Waterways 
Commission  to  investigate  and  recommend  a  full  and  compre- 
hensive plan  for  the  development  and  utilization  of  the  water 
resources  of  the  country.  He  took  the  second  important  step  in 
caUing  a  Conference  of  Governors  at  the  Wliite  House  on  May 
13-15,  1908.^  At  that  meeting  of  state  executives,  facts  regard- 
ing our  natural  resources  were  presented  by  experts;  methods 
of  educating  public  opinion  were  considered;  and  many  plans  by 
which  conservation  could  be  best  accomplished  were  suggested.^ 
Soon  after  the  adjournment  of  this  Conference  of  Governors, 
President  Roosevelt  announced  the  appointment,  of  a  National 
Conservation  Commission  for  the  purpose  of  making  a  study  of 
the  general  problem;  and  following  the  lead  of  the  national  gov- 
ernment, many  states  have  taken  action  toward  the  investigation 
and  solution  of  the  question  of  the  conservation  of  their  own 
natural  resources. 

^  Ibid.,  p.  vi. 

^For  the  recommendations  of  the  conference,  see  Readings,  p.  361. 

3  The  significance  of  this  first  Governors'  Conference  was  not  confined  to 
the  conservation  movement.  It  was,  perhaps,  the  beginning  of  a  new  devel- 
opment in  our  political  institutions.  At  all  events  it  was  the  first  step  in 
the  organization  of  the  House  of  Governors,  which  is  now  (1910)  assuming  insti- 
tutional form.  It  provided  a  permanent  organization  by  which  the  govern- 
ors themselves  can  arrange  for  periodic  meetings,  and  on  the  call  of  this 
organization  a  second  conference  was  held  in  Washington,  D.C.,  in  January, 
1910.  This  Governors'  Conference  is,  of  course,  an  extra-legal  institution 
and  has  no  power  to  take  any  official  action  binding  upon  any  one.  Yet 
it  may  have  great  influence  on  state  legislative  and  executive  policy.  The 
governors  exchange  ideas  on  subjects  which  come  up  for  solution  in  their 
respective  commonwealths,  and  get  the  benefit  of  one  another's  experience. 
The  meetings  will  tend  to  promote  uniformity  in  state  legislation  and  do 
away  with  the  unnecessary  and  inconvenient  diversity  of  state  laws.  As 
was  said  by  Governor  Hughes  of  New  York,  in  a  speech  made  before  the 
second  conference,  the  scope  of  these  conferences  may  embrace  three  groups 
of  questions:  uniform  laws,  interstate  comity,  and  interchange  of  state 
experience. 


National  Resources 


The  Soil 


407 


The  fundamental  resource  of  the  country  is  the  soil.  It  was 
said  by  James  J.  Hill,  in  an  address  before  the  first  Conference  of 
Governors,  that  "nearly  36  per  cent  of  our  people  are  engaged 
directly  in  agriculture.  But  all  the  rest  depend  on  it.  In  the 
last  analysis,  commerce,  manufactures,  our  home  market,  every 
form  of  activity,  run  back  to  the  bounty  of  the  earth  by  which 
every  worker,  skilled  and  unskilled,  must  be  fed,  and  by  which 
his  wages  are  ultimately  paid."  ^ 

While  we  had  at  our  disposal  vast  areas  of  virgin  soil,  we  took  it 
for  granted  that  agriculture  could  take  care  of  itself  and  that 
manufacturing  alone  needed  our  best  energies  and  skill.  During 
the  pioneer  days,  the  frontiersmen  cleared  away  forests  for  farms, 
and  after  getting  what  they  could  out  of  the  land,  abandoned  it, 
moved  forward,  and  repeated  the  process.  That  the  application 
of  science  to  the  abandoned  areas  would  have  renewed  the  bounty 
of  the  soil  did  not  occur  to  the  pioneers,  and  it  was  only  natural 
that  the  refinements  of  agriculture  should  have  been  neglected 
amid  the  rough  struggles  of  the  frontier. 

As  the  tide  of  land-hunting  pioneers  swept  westward  it  left 
behind  it  neglected  and  abandoned  farms.  All  throughout  New 
England  and  the  eastern  states  there  are  deserted  farm-houses 
falling  into  ruin,  and  vast  areas  once  under  cultivation  are 
being  overgrown  with  scrub.  The  rough-and-ready  single-crop- 
ping system,  the  careless  provisions  for  fertilization,  the  malad- 
justment in  connecting  the  country  with  town  markets,  and  the 
enormous  charges  for  freight  and  express  (due  in  many  instances 
to  watered  stocks  and  monopolies)  are  conspiring  to  turn 
whole  states  into  wildernesses.  Society  and  science  must  co- 
operate with  private  initiative  in  restoring  these  regions  to 
fertiUty  and  productiveness. 

It  is  not  only  the  methods  of  tilling  which  are  causing  this 
decline  in  fertility.  The  soil  is  also  being  depleted  by  natural 
causes,  the  principal  one  of  which  is  erosion,  or  the  sweeping  away 
of  the  fertile  surface  into  streams  by  means  of  torrential  rains 
and  floods.  It  is  estimated  that  1,000,000,000  or  more  tons 
of  richest  soil  matter  are  annually  carried  into  the  sea  by  our 

*  Proceedings  of  a  Conference  of  Governors,  1908,  p.  72. 


4o8  American  Government  and  Politics 

rivers.^  Millions  of  acres,  particularly  in  the  South,  have  been 
rendered  bare  and  useless  for  agriculture  largely  by  this  process. 
One  of  the  principal  means  of  stopping  this  wastage  is  the  con- 
servation of  forests  which  help  to  regulate  the  flow  of  water.^ 

The  federal  and  state  governments  at  present  do  little  directly 
to  aid  in  preserving  and  improving  the  fertiHty  of  the  soil;  but 
the  experiments  in  advanced  methods  of  cultivation  carried  on 
by  the  Department  of  Agriculture,^  the  Experiment  Stations,  and 
state  agricultural  colleges,  are  doing  much  to  show  the  farmers 
how  to  make  the  best  use  of  their  land  and  at  the  same  time  to 
conserve  it  for  the  use  of  posterity.  Science  will  become  the  ser- 
vant of  agriculture  as  well  as  of  industry. 

While  lending  this  aid  to  improving  the  methods  of  agriculture, 
the  federal  government  is  widening  the  public  domain  by  re- 
claiming arid  and  semi-arid  lands  through  gigantic  irrigation 
undertakings.  The  Newlands  Act  of  June  17,  1902,'*  authorized 
the  Secretary  of  the  Interior  to  undertake  the  work  of  reclama- 
tion on  a  large  scale.  The  fund  for  the  work  consists  of  the  pro- 
ceeds from  the  sale  of  the  public  lands  in  certain  states.  The 
lands  made  available  by  irrigation  are  sold,  in  small  tracts,  to 
actual  settlers,  who  pay  the  price  in  annual  instalments,  thus 
restoring  to  the  reclamation  fund  the  money  that  is  laid  out. 
Up  to  June  30,  1908,  the  sum  of  $50,661,549.27  had  been  paid 
into  the  fund  from  all  sources.^ 

The  work  is  done  by  the  Reclamation  Service,  which  is  in  the 
Department  of  the  Interior.  Reservoirs,  drains,  canals,  etc., 
are  constructed  by  the  government,®  and  from  them  the  settlers 
can  draw  water  by  means  of  ditches  to  irrigate  their  farms. 
A  large  number  of  projects  have  been  undertaken,  some  of  them 
requiring  engineering  skill  of  a  high  order.  One  of  the  most  in- 
teresting of  these  is  the  Shoshone  project  in  Wyoming,  which  con- 
templates the  erection  of  a  dam  over  300  feet  high.^    The  first 

'  Proceedings  of  a  Conference  of  Governors,  1908,  p.  78. 

^Readings,  p.  365. 

3  For  the  work  of  this  important  Department  see  Reinsch,  Readings, 
pp.  401  ff. 

"•For  speeches  in  Congress  on  this  act,  see  Readings,  pp.  66,  371. 

^Report  of  the  Secretary  of  the  Interior,  1909,  p.  21. 

'  Largely  by  contract. 

^The  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
Vol.  XXXI,  pp.  203-218. 


National  Resources 


409 


six  years  of  the  reclamation  work  resulted  in  making  767,958  acres 
fit  for  settlement,  out  of  which  424,549  acres  were  actually  irri- 
gated.^ 

Some  of  the  states  are  also  carrying  on  similar  work.  For 
example,  Idaho  has  undertaken  stupendous  projects.  It  has 
constructed  one  of  the  largest  irrigation  canals  in  the  world  and 
rendered  arable  more  than  300,000  acres  of  barren  waste.  It 
has  entered  into  contracts  for  the  construction  of  large  storage 
reservoirs  to  control  flood  waters.  Utah  is  financing  a  number 
of  reclamation  projects.  Missouri  and  Florida  are  carrying  on 
large  drainage  operations,  while  New  Jersey  is  ditching  and  fill- 
ing in  marsh  lands. 

Mineral  Resources 

Among  the  most  valuable  of  the  natural  resources  and  the 
most  necessary  in  the  present  stage  of  civilization  are  the 
minerals.  Coal  and  iron  form  the  foundation  of  our  industrial 
prosperity.  In  one  respect,  the  minerals  differ  greatly  in  char- 
acter from  all  other  natural  resources;  they  cannot  be  improved 
or  renewed.  This  makes  a  proper  use  of  them  all  the  more 
imperative. 

It  has  been  estimated  that  our  original  heritage  of  coal  was 
about  2,500,000,000,000  tons.  Authorities  differ  on  how  long 
it  will  be  before  the  supply  is  exhausted,  the  common  prediction 
being  about  two  hundred  years.  There  is  always  a  possibility, 
of  course,  that  new  and  unexpected  deposits  will  be  discovered. 
Still,  the  great  increase  of  consumption  during  the  last  few  years,^ 
makes  the  problem  of  conserving  the  coal  deposits  for  future 
generations  an  important  one. 

The  needless  waste  of  our  coal  supply  is  due  principally  to 
two  causes.  The  first  is  the  wasteful  methods  of  mining,  which 
leave  from  40  per  cent  to  70  per  cent  of  the  fuel  in  the  mines, 
a  large  part  of  it  beyond  recovery.  The  second  cause  is  due 
to  the  imperfect  methods  of  combustion.  It  is  estimated  that 
about  90  per  cent  of  the  potential  energy  of  the  coal  goes  to  waste.^ 

Our  second  great  mineral  resource  is  iron.    The  present  stock 

*  Report  of  the  Secretary  of  the  Interior,  1909,  p.  24. 
^Readings,  p.  371- 

3  These,  of  course,  leave  out  of  account  the  social  wastes  due  to  competition. 
See  Reeve,  The  Cost  of  Competition. 


410  American  Government  and  Politics 

of  iron  ore  in  the  United  States  is  reckoned  at  about  10,000,000,- 
000  tons.  Mr.  Andrew  Carnegie  has  estimated  that  the  known 
supply  will  be  exhausted  before  1940.^  Other  estimates  are  not 
as  pessimistic,  it  being  generally  agreed  that  the  supply  will 
last  until  the  end  of  the  century.  Moreover,  it  is  Ukely  that 
additional  ore  will  be  discovered.  Nevertheless,  even  looking 
at  it  from  the  most  optimistic  standpoint,  the  conservation  of 
the  supply  of  iron  ore  is  a  practical  question,  particularly  when 
we  bear  in  mind  the  fact  that  about  80  per  cent  of  the  known 
iron  ore  deposits  in  this  country  are  controlled  by  the  United 
States  Steel  Corporation. 

Another  important  mineral  resource  is  natural  gas.  An 
absolutely  unnecessary  waste  of  gas  is  found  in  uncontrolled 
wtUs  and  leaking  pipe  lines.  About  1,000,000,000  cubic  feet 
are  lost  daily  in  the  United  States  through  these  and  other 
causes.  The  legislature  of  Indiana  has  passed  a  statute  prohibit- 
ing the  waste  of  natural  gas  through  negligence,  and  all  gas- 
producing  states  should  follow  her  example. 

The  national  government  can  do  nothing  to  conserve  the 
mineral  resources  that  are  now  in  private  hands,-  without 
modifying  its  traditional  poHcy  with  regard  to  the  sacredness 
of  private  rights,  but  an  enormous  amount  of  mineral  land  is 
found  in  the  pubhc  domain,  and  this  may  be  protected  without 
coming  into  conflict  with  constitutional  limitations.  During 
the  last  few  years,  several  measures  have  been  initiated  to  safe- 
guard pubhc  property  in  mineral  lands.^  The  first  step  is  to 
withdraw  these  lands  from  entry  and  sale  and  properly  classify 
them.     The  next  problem  is  how  to  provide  for  their  right  use. 

Of  the  various  methods  of  reform  suggested,  perhaps  the  best, 
at  least  for  the  present,  is  the  proposal  that  the  government 
should  cease  to  grant  mineral  lands  in  perpetuity,  and,  instead, 
lease  them  for  terms  of  years  at  a  proper  rental,  requiring  the 
deposits  to  be  worked  in  strict  conformity  with  government 
regulations   and   under   the   supervision   of   official  inspectors, 

^Proceedings  of  a  Conference  of  Governors,  1908,  p.  17. 

^  During  the  great  period  of  railroad  construction  many  coal  and  iron 
lands  were  granted  to  railways.  Enormous  amounts  have  been  sold  to  in- 
dividuals at  ridiculously  low  prices.  Huge  tracts  have  been  obtained  by 
fraud.     Eight  railway  systems  now  control  the  hard  coal  fields. 

3  Readings,  p.  368. 


National  Resources  411 

so  as  to  prevent  monopoly,  ensure  proper  mining  methods,  and 
check  waste.^ 

Forests 

In  the  forests  we  have  a  natural  resource  that  is  highly  valuable, 
not  only  for  their  direct  contribution  to  the  welfare  of  the  nation, 
but  also  for  their  indirect  bearing  on  the  preservation  of  some 
other  resources,  —  the  soil,  water  power,  and  waterways.^ 
The  primary  use  made  of  the  forests  is,  of  course,  for  the  lumber 
supply,  which  is  as  necessary  to  us  in  our  daily  life  as  the  various 
metals  and  minerals.  But  much  more  than  that,  —  the  forests 
are  necessary  to  preserve  the  fertility  of  the  soil  and  to  aid  in 
the  maintenance  of  natural  waterways.  They  help  to  conserve 
the  soil  by  absorbing  moisture  and  compelling  it  to  percolate 
under  the  ground  instead  of  running  off  the  surface.  Further- 
more, they  check  the  water  from  rushing  down  in  torrential 
streams,  and  thus  prevent  soil  waste.  They  are  essential  for 
the  preservation  of  water  power  and  the  development  of  water- 
ways because  they  act  as  natural  reservoirs  and  regulate  the  flow. 
By  holding  back  moisture  and  giving  it  out  gradually,  they  help 
to  maintain  a  stable  channel,  thus  preventing  the  drying  up  of 
streams  in  seasons  of  drought,  and  also  checking  floods  at  other 
times. 

That  there  is  need  of  calling  a  halt  to  the  wasteful  destructign 
of  the  forests  is  indicated  by  the  fact  that  we  are  consuming  them 
three  times  as  fast  as  they  are  being  reproduced.'  It  was  said 
by  President  Roosevelt  that  "some  of  the  richest  timber  lands 
of  this  continent  have  already  been  destroyed,  and  not  replaced, 
and  other  vast  areas  are  on  the  verge  of  destruction."  ^  For 
instance  it  has  been  estimated  that  at  the  present  rate  of  con- 
sumption the  forests  of  New  York  State  (except  those  on  state 
land)  will  be  absolutely  cut  away  in  about  twenty  years,  and 
that  the  privately  owned  forests  of  California  will  be  exhausted 
in  about  thirty-five  years. 

'  Some  of  the  states,  as  Utah,  also  own  mineral  lands.  They  too,  are  be- 
ginning to  see  the  necessity  of  preserving  them  and  are  ceasing  to  sell  them  at 
ruinously  low  figures.  The  adoption  of  a  leasing  system  by  states  owning 
mineral  lands  has  also  been  advocated. 

^  Readings,  p.  364. 

'The  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
Vol.  XXXI,  p.  8. 


412-  American  Government  ♦and  Politics 

There  are  a  number  of  causes  of  forest  waste.  A  tremendous 
amount  of  timber  is  lost  by  forest  fires  which  are  caused  largely 
by  carelessness  and  could  be  often  prevented  by  efficient  govern- 
ment supervision.  Another  source  of  waste  is  the  reckless  cutting 
of  young  trees.  Finally,  the  methods  generally  employed  in 
lumbering  are  unnecessarily  destructive,  for  about  20  per  cent 
of  the  low-grade  logs  are  left  in  the  woods  to  rot  or  be  burned. 
The  private  owner,  usually  intent  on  immediate  profits,  is  sel- 
dom long-sighted  enough  to  adopt  a  poHcy  of  conservation,  the 
rewards  for  which  he  cannot  expect  to  live  to  reap. 

The  national  government  is  a  large  proprietor  of  forests. 
About  22  per  cent  of  our  forest  area  is  to  be  found  on  the  public 
domain,  and  it  is  the  duty  of  the  government  to  pursue  proper 
methods  of  conservation  in  so  far  as  those  timber  lands  are 
concerned.^ 

The  same  short-sightedness  that  we  have  described  in  con- 
nection with  the  rest  of  the  national  domain  has  been  found  in 
the  past  in  the  treatment  of  pubHc  forests.  Large  areas  have 
been  permitted  to  get  into  private  hands  through  the  sheer  un- 
willingness of  Congress  to  face  the  situation.  Under  the  so-called 
timber  and  stone  acts,  —  the  repeal  of  which  is  being  strongly 
urged,  —  5,000,000  acres  of  timber  land  on  the  public  domain 
were  sold  from  1901  to  1906,  to  private  individuals,  for  $2.50 
an  acre,  or  for  less  than  $13,000,000,  when  their  actual  value 
was  more  than  $100,000,000.^ 

Of  late  years,  however,  large  tracts  of  forest  lands  have  been 
withdrawn  from  entry  and  erected  into  National  Forests.  They 
have  been  placed  under  the  jurisdiction  of  the  Forest  Service, 
which  is  in  the  Department  of  Agriculture.  These  forests 
cannot  be  indiscriminately  cut,  and  they  are  properly  cultivated 
and  cared  for.  In  addition  to  this,  many  forest  fires  have  been 
prevented  by  the  efficient  work  of  the  Forest  Service. 

Much  is  also  being  done  by  the  state  governments  to  conserve 
our  forest  resources.  State  forest  reserves  are  being  created, 
trees  planted,  and  forest  fires  prevented.  New  York  is  taking 
the  lead  in  this  direction.  It  maintains  forest  reserves  contain- 
ing over  a  milUon  and  one  half  acres,  under  the  jurisdiction  of 

^Readings,  p.  366. 

^  Proceedings  of  a  Conference  of  Governors,  1908,  p.  187. 


National  Resources  413 

the  Forest,  Fish,  and  Game  Commissioner,  and  the  preservation 
of  these  forests  is  provided  for  in  the  state  constitution.  A 
new  reservation  is  being  established  along  the  western  shore  of 
the  Hudson,  in  conjunction  with  the  state  of  New  Jersey.  In 
addition,  the  state  is  carrying  on  the  work  of  reforestation,  and 
plants  thousands  of  trees  every  year.^ 

Another  very  important  activity  carried  on  by  the  states  in 
this  connection  is  the  prevention  of  forest  fires.  Thus  Maine 
has  a  force  of  forest  fire  wardens  engaged  in  the  work;  a  similar 
service  is  found  in  Washington;  and  Alabama  makes  it  a  criminal 
offence  carelessly  to  set  fire  to  timber. 

Water  Power 

The  threatened  exhaustion  of  our  coal  supply  makes  it  par- 
ticularly necessary  to  make  proper  use  of  another  source  of  power, 
namely,  water.  In  addition  to  its  being  a  possible  substitute 
for  coal,  water  power  is  particularly  important  in  places  that  are 
far  from  the  mining  regions  and  where  transportation  expenses 
are  high.  The  development  of  water  power  has  permitted  the 
growth  of  industry  in  the  South,  and  has  helped  to  make  the 
prosperity  of  many  cities  in  the  Northwest.  It  has  become 
especially  valuable  with  the  increased  use  of  electricity,  as  the 
power  can  now  be  transmitted  fifty  or  a  hundred  miles. 

The  upper  basins  of  the  Mississippi  and  the  Missouri  valleys 
and  the  Southern  Appalachian  highlands  contain  important 
power  sites.  The  rivers  of  northern  and  western  New  York  can 
also  furnish  water  power  of  great  value,  and  enormous  possibilities 
are  to  be  found  in  the  far  West.  It  has  been  estimated  that  the 
total  water  power  in  the  United  States  exceeds  30,000,000 
horsepower,  which  can  probably  be  increased  to  150,000,000 
horsepower  by  the  construction  of  reservoirs.^ 

The  most  important  thing  that  the  government  can  do  for  the 
proper  conservation  of  water  power  is  to  prevent  the  sites  from 
getting  into  the  hands  of  private  monopolies  and  to  preserve  the 

'Large  forest  reserves  have  been  acquired  by  Pennsylvania,  which  is 
also  carrying  on  the  work  of  reforestation.  Wisconsin  owns  forest  reserves, 
which  are  under  the  care  of  a  Forestry  Commission,  and  large  tracts  of  timber 
lands  are  owned  by  the  state  of  Washington. 

^  Proceedings  of  a  Conference  of  Governors^  1908,  p.  294. 


414  American  Government  and  Politics 

use  of  them  for  the  benefit  of  the  whole  people.  The  first  step 
in  this  direction  is  to  withdraw  from  entry  the  water  power  sites 
on  the  public  domain,  and  to  a  large  extent  this  has  already  been 
done  during  the  past  few  years.  The  Geological  Survey  is  making 
an  investigation  of  the  water  resources,  and  more  sites  will  be 
withdrawn  as  the  information  is  being  gathered.  The  next 
step  is  to  provide  for  the  proper  use  of  the  water  power,  and 
within  recent  years  a  strong  demand  has  arisen  that  the  govern- 
ment should  cease  to  grant  water  rights  in  perpetuity,  and 
should  reserve  title  to  the  lands  and  merely  grant  the  right  to 
develop  and  use  the  power  for  a  term  of  years,  charging  a  proper 
fee  for  the  privilege. 

Because  of  its  power  over  navigation.  Congress  has  a  certain 
amount  of  control  over  water  power  sites  in  all  navigable  rivers. 
Up  to  a  few  years  ago  rights  to  erect  dams  were  being  granted 
by  Congress  at  random  and  in  perpetuity,  but  President  Roosevelt 
checked  this  poHcy  to  some  extent,  and  laid  down  the  doctrine 
that  such  rights  should  be  granted  only  for  a  term  of  years  at 
rentals  proportioned  to  their  true  values. 

The  national  government  can  also  do  much  for  the  actual 
development  of  water  power.  Thus  the  conservation  of  forests 
will  even  the  flow  of  rivers  in  wet  and  dry  seasons,  and  thereby 
enlarge  the  possibihties  of  using  the  streams. 

The  state  governments  have  great  opportunities  for  helping 
in  the  preservation  and  development  of  water  power,  but  they 
are  only  beginning  to  take  advantage  of  them.  In  New  York, 
the  State  Water  Supply  Commission  has  made  a  critical  investi- 
gation of  the  water  powers  of  the  state  and  a  careful  study  of 
the  possibilities  of  utilizing  them.  It  has  recommended  the 
construction  of  reservoirs  for  the  storage  of  water,  and  the  state 
is  to  enter  upon  the  work  as  soon  as  the  requisite  authorization 
for  the  issue  of  bonds  can  be  secured.  The  state  is  to  own  the 
reservoirs  and  lease  the  power  to  the  highest  bidder.*  Wisconsin 
has  also  undertaken  similar  work.  In  that  state,  however,  the 
construction  is  being  conducted  by  a  private  company  under 
state  supervision.- 

The  government  is  much  better  qualified  to  develop  our  power 

^  Review  of  Reviews,  Vol.  XLI,  pp.  775. 
2  Review  of  Reviews,  Vol.  XXXIX,  p.  60. 


National  Resources  41^ 

resources  than  any  private  individual  or  corporation.  It  can 
provide  for  comprehensive  and  coordinated  action,  having  as 
its  aim  ultimate  development  rather  than  immediate  profits. 
By  doing  the  work  it  will  confer  upon  the  people  many  benefits 
besides  the  mitigation  of  floods  and  the  deepening  of  navigable 
channels.  Properly  managed  they  should  yield  great  revenues 
to  be  employed  for  social  purposes. 

Waterways 

During  the  early  period  of  our  history,  previous  to  the  develop- 
ment of  railroads,  water  transportation  was  of  special  importance. 
This  led  to  the  construction  of  numerous  canals  by  the  state 
governments  and  private  companies.  But  after  1850  water 
routes  fell  into  disuse,  and  transportation  by  rail  supplanted 
transportation  by  water. 

During  the  last  decade,  however,  the  problem  of  transportation 
has  taken  on  a  new  aspect.  At  the  present  time  our  commerce 
is  developing  at  a  much  greater  rate  than  our  railroad  facihties, 
so  that  the  proper  care  and  utilization  of  our  water  routes  has 
become  a  pressing  need.  Moreover,  the  presence  of  navigable 
rivers  and  canals  acts  as  a  regulator  of  railroad  freight  rates 
through  competition.  Finally  water  carriage  is  much  cheaper 
than  transportation  by  rail.  The  waterways  of  the  United 
States  have  an  aggregate  length  of  between  55,000  and  60,000 
miles,  but  only  about  half  of  the  mileage  is  at  present  used  for 
navigation.  It  is  now  proposed  to  render  available  new  routes 
and  to  improve  the  old  ones. 

Congress  has  done  much  in  the  past  in  deepening  rivers 
and  harbors,  but  its  work  has  been  desultory  and  unsystematic, 
largely  with  a  view  to  local  and  selfish  interests.^  Thus  far  there 
has  been  a  lack  of  any  definite  and  continuous  plan  ;  many  sepa- 
rate projects  have  been  undertaken  and  never  carried  to  comple- 
tion and  vast  sums  have  been  spent  on  projects  purely  local 
in  character,  which  are  of  but  little  value  to  the  nation  at 
large.  The  total  amount  appropriated  by  Congress  for  harbors 
and  waterways  from  1802,  the  date  of  the  earliest  appropriation, 
up  to  and  including  1890  was  $214,039,886.  During  the  sixteen 
years  from  1891  to  1906  the  amount  was  $301,447,046. 

'This, has  been  a  great  source  of  jobbery  and  log-rolling. 


4i6  American  Government  and  Politics 

During  the  last  few  years  it  has  become  recognized  that  com- 
paratively Httle  of  lasting  value  can  be  accompUshed  unless  a 
permanent  plan  is  formulated,  and  purely  local  projects  are 
disregarded.  No  poHcy  has  as  yet  been  finally  determined  upon. 
Several  gigantic  works  are  being  urged.  One  of  these  is  an  in- 
land waterway  along  the  Atlantic  from  Boston  to  Jacksonville, 
Florida,  and  then  across  Florida  into  the  Gulf  of  Mexico,  so  that 
ships  can  avoid  all  dangers  of  the  open  ocean.  Another  scheme 
is  that  of  a  Lakes-to-the-Gulf  Deep  Waterway.  It  is  proposed 
to  link  Lake  Michigan  with  the  Gulf  of  Mexico  by  a  deep  channel. 
The  scheme,  consists  of  "connecting  the  Lake  with  the  Mississippi 
River  by  means  of  a  canal  and  then  deepening  the  river.  It  is 
also  proposed  to  deepen  the  Missouri  River  and  make  it  navigable 
to  the  three  forks.  The  deepening  of  the  Columbia  River  and 
many  other  smaller  projects  are  being  urged. ^ 

In  order  to  finance  the  enterprises  it  has  been  suggested  that  a 
permanent  fund  be  created  by  the  sale  of  bonds,  so  that  the  work 
may  not  be  dependent  on  the  will  of  each  Congress.  Because 
of  the  enormous  cost  involved.  President  Roosevelt  has  proposed 
that  where  the  immediately  abutting  land  is  markedly  benefited, 
the  beneficiaries  should  pay  a  portion  of  the  expenses.  Unless 
the  projects  are  properly  safeguarded,  the  government  will  do 
the  work,  and  a  relatively  few  private  parties  will,  as  is  too  often 
the  case,  derive  the  benefits. 

^  Some  work  on  waterways  has  been  done  by  the  states.  The  most  im- 
portant of  the  state  canals  is  the  Erie  Canal  in  New  York,  which  is  the  con- 
necting link  between  the  Great  Lakes  and  the  Atlantic  Ocean.  The  state 
is  at  present  engaged  in  deepening  the  canal. 


CHAPTER  XXI 

THE   GOVERNMENT  OF   TERRITORIES 

The  Power  of  the  Federal  Government 

The  Constitution  of  the  United  States  makes  no  express 
provision  for  the  acquisition  of  territory,  and  at  the  time  of  the 
Louisiana  purchase  the  question  was  raised  whether  the  federal 
government  had  the  power  to  buy  that  domain.  President 
Jefferson  at  first  doubted  the  constitutionaHty  of  the  purchase, 
and  in  the  summer  of  1803  he  wrote  to  Mr.  John  C.  Brecken- 
ridge  concerning  the  subject:  "The  executive  in  seizing  the 
fugitive  occurrence  which  so  much  advances  the  good  of  their 
country  have  done  an  act  beyond  the  Constitution.  The  legis- 
lature, in  casting  behind  them  metaphysical  subtleties  and  risk- 
ing themselves  like  faithful  servants,  must  ratify  and  pay  for 
it,  and  throw  themselves  on  their  country  for  doing  for  them 
unauthorized  what  we  know  they  would  have  done  for  themselves 
had  they  been  in  a  situation  to  do  it."  ^ 

However,  men  who  took  a  broader  view  of  the  matter  claimed 
that  there  was  full  constitutional  warrant  for  the  action,  inas- 
much as  the  federal  government  enjoyed  the  undoubted  right 
to  acquire  territory  under  the  treaty-making  power.  Even 
Jefferson  finally  gave  up  the  idea  that  it  was  necessary  to  amend 
the  Constitution  in  order  to  acquire  Louisiana,  and  later  the  N 
Supreme  Court  held  that,  "the  Constitution  confers  absolutely  \ 
on  the  government  of  the  Union  the  power  of  making  war  and 
of  making  treaties;  consequently  that  the  government  possesses 
the  power  of  acquiring  territory  by  conquest  or  by  treaty."  * 

Congress  governs  federal  territory  under  that  clause  of  the 
Constitution  giving  it  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property 

1  Works  (Ford  ed.),  Vol.  IV,  p.  500. 
'American  Insurance  Co.  v.  Canter,  i  Peters,  511. 
2E  417 


41 8  American  Government  and  Politics 

belonging  to  the  United  States.  The  conflict  over  the  powers 
of  Congress  under  this  provision  furnishes  a  long  and  stirring 
chapter  in  the  constitutional  history  of  the  United  States.  Dur- 
ing the  first  half  of  the  nineteenth  century,  this  conflict  was  waged 
over  the  question  as  to  whether  Congress  could  prohibit  slavery 
in  the  territories.  The  pro-slavery  wing  of  the  Democratic 
party  contended  that  the  national  legislature  had  no  such  power, 
and  radical  Republicans,  on  the  other  hand,  maintained  that  it 
even  had  no  right  to  permit  slavery  in  the  territories. 

The  whole  matter  of  the  power  of  Congress  over  territories 
was  reopened  in  1898,  with  the  acquisition  of  our  insular  posses- 
sions, in  the  form  of  the  somewhat  striking  question,  "Does  the 
Constitution  follow  the  Flag?"  The  answer  to  this  proposition 
is  simple:  the  federal  government  cannot  go  anywhere  or  do 
anything  except  under  some  power  conferred  by  the  Constitu- 
tion. But  this  leaves  unsettled  the  problem  of  what  provisions 
of  the  Constitution  control  the  federal  authorities  in  the  govern- 
ment of  territories.  It  requires  no  very  subtle  analysis  to  dis- 
cover that  certain  clauses  of  that  instrument  are  designed  to 
limit  the  federal  government  within  the  states;  but  do  all  the 
provisions  in  behalf  of  private  rights  contained  in  the  original 
Constitution,  and  especially  in  the  first  ten  amendments,^  run 
into  the  territories  and  control  the  federal  government  there? 
In  his  famous  opinion  in  the  Dred  Scott  case.  Chief  Justice  Taney 
declared  that  they  did,  and  hence  that  slavery  could  not  be 
prohibited  there  because  that  would  be  depriving  the  slave- 
owner of  his  property  without  due  process  of  law  —  a  gross 
violation  of  the  private  rights  guaranteed  under  the  Constitution. 
Many  years  later  the  Supreme  Court  held  that  the  Seventh 
Amendment  required  a  unanimous  verdict  in  common  law  trials, 
and  controlled  the  legislation  of  Congress  and  territorial  as- 
semblies.^. 

A  new  aspect  was  given  to  this  question  when  the  Hawaiian 
Islands  and  the  Philippines  were  acquired,  because  it  was  ob- 
viously impossible  to  apply  there  all  of  the  elaborate  principles  of 
Anglo-Saxon  jurisprudence  laid  down  in  the  first  ten  amend- 
ments to  the  federal  Constitution.     In  a  series  of  Supreme  Court 


^  See  Readings,  pp.  134-137. 

^Springville  v.  Thomas,  166  U.  S.  R.,  707,  (1897). 


The  Government  of  Territories  419 

decisions/  known  as  the  "Insular  Cases."  many  technical  points 
are  involved,  but  the  upshot  of  them  all  is  that  the  Constitution 
may  be  di\dded  into  two  parts,  fundamental  and  formal;  that 
only  the  fundamental  parts  control  the  federal  authorities  in 
the  government  of  territories;  and  that  the  Supreme  Court 
will  determine,  from  time  to  time,  as  specific  cases  arise,  what 
parts  of  the  federal  Constitution  are  fundamental  and  what 
parts  are  formal.^  Thus  we  may  say,  with  a  judge  of  the  United 
States  circuit  court  of  appeals  for  California,  that,  for  practical 
purposes,  "the  territories  of  the  United  States  are  entirely  subject 
to  the  legislative  authority  of  Congress.  They  are  not  organized 
under  the  Constitution,  nor  subject  to  its  complex  distribution 
of  powers  of  government  as  the  organic  law,  but  are  the  creation 
exclusively  of  the  legislative  department  and  subject  to  its 
supervision  and  control.  The  United  States,  having  rightfully 
acquired  the  territory  and  having  become  the  only  government 
which  can  impose  laws  upon  them,  has  the  entire  domain  and 
sovereignty,  national  and  municipal,  federal  and  state.  It  may 
legislate  in  accordance  with  the  special  needs  of  each  locality,  and 
vary  its  regulations  to  meet  the  circumstances  of  the  people."  ^ 
Under  this  liberal  interpretation  of  the  Constitution,  Congress 
may  estabhsh  and  maintain  practically  any  form  of  govern- 
ment in  the  insular  territories  which  does  not  violate  too  grossly 
the  political  traditions  of  the  American  people. 

In  view  of  the  fact  that,  during  the  campaigns  of  1900  and 
1904,  the  opponents  of  the  American  imperiahst  policy  demanded 
for  the  Porto  Ricans  and  Fihpinos  either  complete  freedom  or 
at  least  "self-government  on  the  Principles  of  the  Declaration 
of  Independence,"  it  seems  worth  while  to  examine  briefly  at 
this  point  the  historical  poUcy  of  the  United  States  in  the  ad- 
ministration of  the  territories.  The  famous  ordinance  of  1787 
for  the  government  of  the  Northwest  Territory  provided  that 

^The  following  cases  relate  especially  to  the  position  of  the  new  terri- 
tories in  our  political  system:  Downs  z).  Bidwell,  182  U.  S.  R.,  244  (1900); 
Dooley  v.  the  United  States,  ibid.,  222;  Dooley  v.  the  United  States,  183 
U.  S.  R.,  151  (1901);  Pepke  v.  the  United  States,  ibid.;  Hawaii  v.  Mankichi, 
190  U.  S.  R.,  197;  Dorr  v.  the  United  States,  195  U.  S.  R.,  138;  DeLinia,^. 
Bidwell,  182  U.  S.  R.,  540  (1900). 

2  See  Readings,  p.  375,  for  a  succinct  statement  by  Justice  Day  of  the 
Supreme  Court  of  the  United  States. 

'  Willoughby,  Terrilories  and  Dependencies  of  the  United  States,  p.  22. 


420  American  Government  and  Politics 

Congress  should  appoint  the  governor,  and  fixed  his  property 
quaUfications  at  a  freehold  estate  of  a  thousand  acres  of  land; 
the  secretary  and  judges  were  Hkewise  appointed  by  Congress 
and  required  to  have  certain  property  quaUfications.  For  the 
time  being,  the  governor  and  judges  were  to  make  the  civil  and 
criminal  laws  for  the  territory,  subject  to  the  approval  of  Con- 
gress. It  was  further  provided  that  when  the  territory  should 
have  5000  free  male  inhabitants,  there  should  be  instituted 
a  representative  assembly  composed  of  delegates,  each  owning 
200  acres  of  land,  chosen  by  the  voters  of  the  territory,  each 
possessing  a  freehold  of  50  acres.  To  this  representative  assembly 
was  added  a  legislative  council  composed  of  five  members, 
(each  with  the  property  qualification  of  500  acres  of  land  free- 
hold) chosen  by  Congress  out  of  ten  persons  nominated  by  the 
representative  branch.  Thus  in  the  beginning  the  federal 
government  did  not  even  give  to  territories  inhabited  principally 
by  white  citizens  of  the  United  States  that  complete  autonomy 
and  democratic  form  of  government  which  many  anti-imperialists 
would  have  conferred  upon  the  insular  possessions  almost  at  the 
very  outset  of  our  administration. 

This  policy  of  keeping  a  firm  control  on  the  territories,  with 
more  or  less  modification,  has  been  continued  throughout  our 
history.  When  the  territory  of  Orleans  was  organized,  in  1804, 
the  executive  power  was  vested  in  a  governor  appointed  by  the 
President  and  Senate,  and  the  legislative  power  was  given  to 
the  governor  and  a  legislative  council  consisting  of  "thirteen 
of  the  most  fit  and  discreet  persons  of  the  territory  appointed 
annually  by  the  President  of  the  United  States  from  persons 
holding  real  estate."  It  was  not  until  the  western  territories 
were  fairly  well  settled  and  somewhat  experienced  in  the  conduct 
of  their  own  political  affairs  that  they  were  given  large  powers 
of  self-government  on  the  basis  of  a  widely  extended  franchise.^ 

The  Government  of  Territories 

I.  At  the  present  time  the  territories  of  the  United  States  fall 
into  three  groups,  the  first  of  which  embraces  New  Mexico, 
Arizona,  and  Hawaii,  each  regularly  organized  according  to 
those  principles  which  have  been  applied  as  the  continental  do- 

^  Willoughby,  Territories  and  Depettdencies  of  the  United  States,  pp.  27-52. 


The  Government  of  Territories  421 

main  of  the  United  States  has  been  developed.  Arizona  and  New 
Mexico  ^  each  has  a  governor,  appointed  by  the  President  and 
Senate  for  a  term  of  four  years  and  enjoying  the  usual  powers 
of  a  commonwealth  governor.  He  is  charged  with  the  faithful 
execution  of  the  laws;  he  is  commander-in-chief  of  the  militia; 
he  has  the  power  of  pardon  and  reprieve;  and  he  may  veto  bills 
passed  by  the  territorial  legislature  subject  to  the  ordinary 
rule  of  repassage  by  two- thirds  vote;  he  may  call  extra  sessions 
of  the  legislature  on  approval  of  the  President.  ^  The  supreme 
judicial  power  is  vested  in  a  supreme  court  composed  of  a  chief 
justice  and  two  associate  justices  appointed  by  the  President 
and  Senate  for  a  term  of  four  years. 

The  legislative  power  is  vested  in  an  assembly  of  two  houses, 
the  members  of  which  are  chosen  on  district  tickets  under 
francliise  so  broad  as  to  include  substantially  all  males  above 
the  age  of  twenty-one.  The  powers  of  the  territorial  legislature 
and  its  mode  of  procedure  are  in  many  respects  restricted  b] 
the  statutes  of  the  United  States,  but  they  resemble,  in  general, 
those  of  ordinary  state  legislatures.^ 

The  Hawaiian  Islands  were  annexed  by  a  joint  resolution  of 
Congress  approved  July  7,  1898;  and  their  administration  is 
based  on  the  organic  act  of  April  30,  1900,  which  erected  them 
into  a  territory  and  created  a  complete  system  of  government, 
going  even  into  greater  detail  than  in  the  case  of  Arizona  and  New 
Mexico.  The  provisions  of  the  Constitution  and  laws  of  the 
United  States,  applicable  to  local  conditions,  were  extended  to 
Hawaii;  and  American  citizenship  was  conferred  upon  all  per- 
sons who  were  "citizens  of  the  republic  of  Hawaii  on  August  12, 
1898."  The  governor  and  secretary  of  Hawaii  are  appointed 
by  the  President  and  Senate.  The  legislature  consists  of  a  senate 
and  a  house  of  representatives,  and  the  members  of  each  are 
elected  by  popular  vote.  Every  voter  must  be  a  male  citizen 
of  the  United  States  twenty-one  years  of  age  and  a  resident  of 
the  territory  of  not  less  than  one  year's  standing;   he  must  be 

^  The  admission  of  these  territories  as  states  is  now  (February,  1910)  pend- 
ing in  Congress. 

-  The  governor  is  assisted  by  a  secretary  appointed  by  the  President  and 
Senate. 

3  Willoughby,  Territories  and  Dependencies,  pp.  55  ff.  Each  territory  has 
a  delegate  in  Congress  who  may  speak  but  not  vote. 


422  American  Government  and  Politics 

duly  registered  and  must  be  able  to  read,  write,  and  speak  either 
the  English  or  Hawaiian  language/ 

II.  The  second  group  of  territories  includes  those  that  are  not 
fully  "organized,"  but  at  the  same  time  have  legislative  assemblies 
containing  representative  elements,  namely  Porto  Rico  and  the 
Philippines.  The  possession  of  Porto  Rico  by  the  United  States 
dates  from  the  raising  of  the  American  flag  on  that  island  in 
July,  1898.  For  almost  two  years  the  new  domain  was  governed 
under  military  authority,  but  on  May  i,  1900,  the  organic  act 
of  Congress  erecting  civil  government  in  the  island  was  approved 
by  the  President.^ 

This  act  did  not  confer  citizenship  upon  the  inhabitants, 
but  merely  provided  that  they  should  be  deemed  citizens  of 
Porto  Rico  and  as  such  entitled  to  the  protection  of  the  United 
States.  In  this  regard  the  Porto  Ricans  occupy  a  peculiar 
position;  they  owe  permanent  allegiance  to  the  United  States, 
but  they  are  not  American  citizens;  neither  are  they  aliens,  at 
least  in  the  meaning  of  the  immigrant  act  of  1891.^ 

The  chief  executive  officer  of  Porto  Rico  is  the  governor,  who 
is  appointed  by  the  President  and  Senate  of  the  United  States 
for  a  term  of  four  years."^  There  are  also  six  executive  officers,  — 
secretary,  attorney-general,  treasurer,  auditor,  commissioner  of 
the  interior,  and  commissioner  of  education  —  appointed  in 
the  same  manner  as  the  governor.  They  have  double  duties 
to  perform;  on  the  one  hand  they  have  charge  of  important 
administrative  functions  and  constitute  a  majority  in  the  ad- 
visory council  to  the  governor;  and  on  the  other  hand  they 
are  members  of  the  upper  house  of  the  Porto  Rican  legislature. 

Under  the  organic  act,  the  legislature  consists  of  two  houses. 
The  upper  house,  or  executive  council,  is  composed,  as  we  have 
seen,  of  the  six  executive  oflacials  and  five  other  persons  "of 
good  repute"  appointed  by  the  President  and  Senate  of  the 
United  States.    Local  representation  in  this  body  is  secured 

'  This  provision  excludes  most  of  the  Chinese  and  Japanese  inhabitants 
of  the  island,  and  since  there  is  a  decline  in  the  number  of  natives,  the  political 
power  is  passing  into  the  hands  of  the  English-speaking  inhabitants.  Wil- 
loughby,  Territories  and  Dependencies,  p.  65. 

2  For  an  extract,  Readings,  p.  388. 

^  Gonzales  v.  Williams,  192  U.  S.  R.,  i. 

^  The'supreme  court  is  composed  of  five  judges,  likewise  appointed  by  the 
President  and  Senate,  and  holding  office  during  good  behavior. 


The  Government  of  Territories  423 

by  the  provision  that  at  least  five  members  of  the  council  must 
be  native  inhabitants  of  the  island.  The  lower  house  of  the 
legislature  consists  of  thirty-five  members,  elected  biennially  under 
a  franchise  which  gives  the  right  to  vote  to  practically  every  adult 
male  who  has  satisfied  the  residence  requirements.^ 

Owing  to  the  practice  of  conferring  the  six  executive  offices 
and  the  office  of  the  governor  upon  citizens  of  the  United  States, 
the  control  of  legislative  as  well  as  executive  matters  has  passed 
largely  out  of  the  hands  of  natives;  and  this  has  been  the  source 
of  considerable  friction  between  the  representative  and  the 
appointive  branches  of  the  legislature.  In  190S  the  refusal  of 
the  executive  council  to  approve  certain  legislative  projects 
adopted  by  the  lower  house  so  incensed  that  body  that  it  attempted 
to  block  the  budget  and  thus  force  a  deadlock  in  the  govern- 
ment. The  dispute  was  carried  to  Washington,  in  1900,  and 
made  the  subject  of  special  consideration  by  the  Cabinet.  The 
whole  matter  was  then  referred  to  Congress,  and  a  law  was  passed 
providing  that  in  case  the  lower  house  refused  to  pass  the  budget, 
the  financial  arrangements  of  the  preceding  year  should  be 
continued. 

The  problem  of  goverm'ng  the  Philippine  Islands  is  infinitely 
more  complicated  than  that  of  governing  Porto  Rico.-  The 
Philippine  archipelago  embraces  no  less  than  3 141  islands  and 
islets,  among  which  Luzon,  Mindanao,  Samar,  Negros,  Panay, 
and  Mindoro  are  the  most  important.  In  March,  1903,  the  total 
population  amounted  to  7,635,426,  of  which  461,740  were  classified 
as  "wild."  There  are  representatives  of  about  thirty  different 
tribes,  speaking  as  many  different  dialects.^  The  civilized  inhabit- 
ants of  the  islands  are  nearly  all  adherents  of  the  Catholic  faith, 
but  they  range  in  culture  from  educated  and  wealthy  Spaniards 
to  poor  and  wretched  natives.  It  is  small  wonder,  therefore, 
*that  the  Congress  has  had  great  difficulty  in  devising  a  system  of 
government  that  will  meet  the  needs  and  aspirations  of  the 
proud  and  independent  elements  of  the  population,  and  at  the 
same  time  guarantee  security  of  life  and  property  throughout  the 
whole  archipelago. 

'  It  was  provided  by  law  that  after  July  i,  1906,  no  new  voter  should  be 
added  to  the  registration  list  unless  he  could  read  and  write. 
2  For  American  policy  in  the  Philippines,  see  Readings,  p.  380. 
^  Census  of  the  Philippine  Islands^  Vol.  II,  pp.  14-16, 


424  American  Government  and  Politics 

The  Philippines  were  acquired  under  the  treaty  with  Spain. 
The  protocol  suspending  hostilities  with  that  country  provided 
that  the  United  States  should  hold  Manila  pending  the  conclusion 
of  a  treaty  of  peace  which  should  determine  the  disposition  and 
government  of  the  islands.  The  treaty,  duly  signed  at  Paris  on 
December  lo,  1898,  contained  the  definite  transfer  of  the  archi- 
pelago to  the  United  States,  leaving  the  status  of  the  islands  to  be 
determined  by  Congress. 

The  development  of  American  government  in  the  Philippines 
falls  into  three  stages.  ( i )  In  the  beginning,  a  considerable  portion 
of  the  inhabitants  were  in  revolt  against  American  rule,  and  the 
islands  were  governed  by  the  President  under  military  authority. 
In  January,  1899,  a  commission  was  appointed,^  to  act  in  conjimc- 
tion  with  Admiral  Dewey  and  General  Otis  in  extending  American 
authority  throughout  the  PhiHppines,  and  to  investigate  the  whole 
problem  of  government  there.^  (2)  On  receiving  the  recommenda- 
tions of  this  first  commission,  the  President  appointed,  in  March, 
1900,  a  civil  commission,  with  Mr.  Taft  at  the  head,  to  continue 
the  work  of  establishing  civil  government  which  had  already  been 
begun  by  the  military  ofl&cers ;  and,  in  1901,  the  President  trans- 
ferred from  the  military  governor  to  the  president  of  this  com- 
mission all  civil  powers  of  the  executive  branch  of  the  government 
in  the  provinces  in  which  tranquillity  was  restored.  Under  this 
order,  Mr.  Taft  was  made  civil  governor  of  the  Philippine  Islands. 
(3)  At  length,  in  1902,  Congress  passed  an  organic  act  for  the 
Philippines,  providing,  among  other  things,  that  after  the  comple- 
tion of  the  census  and  the  pacification  of  the  islands  a  legislative 
assembly  should  be  erected.  The  last  stage  in  the  construction 
of  the  Philippine  government  was  reached  on  October  16,  1907, 
when  Mr.  Taft,  then  on  his  celebrated  tour  around  the  world, 
opened  at  Manila  the  first  representative  assembly  elected  in 
the  islands  under  the  authority  of  the  United  States.^ 

Under  the  system  now  in  force  the  executive  government  of  the 
Philippine  Islands  is  vested  in  a  commission  of  nine  members, 

^  Composed  of  Dr.  Jacob  Gould  Shurman,  President  of  Cornell  University, 
the  Honorable  Charles  Denby,  one  time  minister  of  the  United  States  to 
China,  and  Professor  Dean  C.  Worcester  of  the  University  of  Michigan. 

^  The  two  reports  of  this  commission,  November  2,  1899,  and  December 
31,  1900,  are  a  veritable  mine  of  information  on  Philippine  conditions. 

^  Readings,  p.  ^SS' 


The  Government  of  Territories  425 

including'  the  governor,  —  five  Americans  and  four  Filipinos, 
appointed  by  the  President  and  Senate  of  the  United  States. 
The  legislature  consists  of  the  Philippine  commission,  which 
acts  as  an  upper  house,  and  an  assembly  elected  by  the  voters  of 
those  portions  of  the  islands  not  inhabited  by  Moros  or  other 
non-Christian  tribes.  The  franchise  for  voting  is  limited  by 
somewhat  complicated  qualifications:  every  voter  must  take  an 
oath  of  allegiance,  and,  among  other  things,  he  must  be  a  property- 
owner,  or  a  tax-payer,  or  able  to  read,  write,  and  speak  English  or 
Spanish. 

Ill .  A  third  group  of  territories  of  the  United  States  is  composed 
of  those  which  are  governed  directly  by  federal  officers  without 
the  intervention  of  a  legislative  assembly  in  any  form.  It  in- 
cludes Alaska,  purchased  from  Russia  in  1867,  Guam,  secured  by 
the  Spanish  treaty  in  1.898,  Tutuila  and  islets,  acquired  by  settle- 
ment with  England  and  Germany  in  1899,  and  the  Panama  Canal 
Zone,  obtained  by  a  treaty  with  the  repubhc  of  Panama  in  1904.* 

The  chief  executive  of  Alaska  is  the  governor,  appointed  by  the 
President  and  Senate  for  a  term  of  four  years;  he  is  charged  with 
supervising  the  interests  of  the  United  States  government  in  the 
district;  he  sees  that  the  laws  of  Congress  are  enforced;  grants 
reprieves  pending  the  action  of  the  President;  he  is  commander- 
in-chief  of  the  militia,  and  reports  annually  to  the  President 
through  the  Secretary  of  the  Interior.  The  governor  is  assisted 
by  a  surveyor-general  (likewise  appointed  by  the  President  for  a 
term  of  four  years),  who  acts  as  secretary  of  the  territory. 

Civil  and  penal  codes  and  codes  of  procedure  were  adopted 
for  Alaska  by  Congress  in  1 899-1 900.  The  codes  also  provide 
for  the  organization  of  municipal  government,  the  establish- 
ment of  schools,  and  the  raising  of  revenues.  The  homestead 
laws  have  been  extended  to  that  territory,  giving  actual  settlers 
the  right  to  enter  320  acres  of  land  each.  The  settlement  of 
Alaska,  however,  proceeds  very  slowly, .  for  according  to  the 
Report  of  1908  only  439  homesteads  had  been  taken  up  during 
the  preceding  fiscal  year,  and  the  entire  population  was  estimated 
at  only  31,000  permanent  white  settlers,  7000  transients  em- 

*  The  Wake  Island,  Midway  or  Brooks  Island,  Rowland  and  Baker  Island 
and  the  Guano  Islands,  having  few  or  no  inhabitants,  are  not  under  any 
organized  form  of  government. 


426  American  Government  and  Politics 

ployed  in  mines,  canneries,  and  railway  camps,  and  about  35,000 
natives. 

The  government  of  the  Panama  Canal  Zone  is  vested  in  the 
President  by  an  Act  of  Congress  authorizing  him  to  legislate  for 
that  district.  An  executive  order  of  1907  gave  the  chief  adminis- 
trative authority  in  the  Zone  to  the  chairman  of  the  Isthmian 
Canal  Commission.  This  officer,  in  turn,  assigned  it  to  one  of  the 
commissioners,  who  now  bears  the  title  of  head  of  the  department 
of  civil  administration,  and  acts  as  governor.^  The  legislative 
authority  conferred  upon  the  President  was  vested  by  him  in  the 
commission,  which  now  makes  laws  and  ordinances  for  the  district, 
subject  toHhe  approval  of  the  Secretary  of  War.  The  commis- 
sion consists  of  seven  members,  including  the  chairman  and  chief 
engineer  and  the  secretary,  all  appointed  by  the  President  and 
Senate.  It  has  charge  of  the  construction  of  the  canal  from  the 
Caribbean  Sea  to  the  Pacific  Ocean,  a  distance  of  about  fifty  miles, 
and  is  expected  to  finish  the  gigantic  undertaking  about  19 14. 
The  entire  civil  government  of  the  Zone,  and  the  construction  of  the 
canal  as  well,  are  placed  under  the  general  supervision  of  the  War 
Department,  to  which  the  commission  makes  an  annual  report." 

The  District  of  Columbia,  in  area  about  seventy  square  miles, 
was  accepted,  as  the  seat  of  the  federal  government,  from  Mary- 
land by  Congress  in  1790.^  Several  experiments  in  the  govern- 
ment of  the  municipality  by  mayor  and  council  were  tried,  but 
none  of  them  proved  successful.  At  last,  in  1874,  Congress  made 
a  radical  departure  in  the  government  of  the  city  by  passing  an  act 
destroying  the  last  vestige  of  popular  representation.''    The  legisla- 

^  He  has  under  him  police,  revenue,  customs,  fire,  public  works,  and  edu- 
cation departments. 

^  The  government  of  Samoa  is  in  the  hands  of  a  naval  officer  stationed  at 
Pago  Pago  on  the  island  of  Tutuila;  this  officer  has  full  executive  and  legis- 
lative authority.  Guam  is  likewise  governed  by  a  naval  officer  in  charge  of 
the  naval  station.  The  commandant  of  each  of  these  posts  reports  annually 
to  the  Secretary  of  the  Navy. 

3  The  district  was  originally  ten  miles  square,  lying  on  both  sides  of  the 
Potomac  River  and  including  a  small  area  granted  by  Virginia,  but  in  1846  the 
Virginia  portion  was  returned  to  that  state.  The  seat  of  the  federal  govern- 
ment was  moved  to  Washington  in  1800. 

*  The  problem  of  negro  suffrage  was  prominent  in  the  District  politics 
under  an  elective  government,  and  was  largely  responsible  for  the  drastic 
action  of  Congress  in  abolishing  the  council  altogether.  As  a  result  the 
entire  population  is  now  disfranchised. 


The  Government  of  Territories  427 

live  powers  of  the  District  are  now  assumed  by  Congress,  which  has 
by  rule  set  aside  certain  days  to  be  devoted  to  the  business  of  the 
District.  The  executive  power  is  given  to  a  board  of  three  com- 
missioners—  two  civilians  and  one  mihtary  officer  —  appointed 
by  the  President  and  Senate.  This  board  enjoys  not  only  large 
administrative  powers,  but  also  makes  ordinances  relating  to 
public  safety,  health,  and  welfare.  • 

The  island  of  Cuba,  while  it  may  not  be  regarded  as  a  depend- 
ency, is  under  the  protection  of  the  United  States.  In  the  joint 
resolution  of  Congress  demanding  the  withdrawal  of  Spain  in 
1898,  ^  it  was  specifically  stated  tint  the  United  States  disclaimed 
any  intention  of  exercising  sovereignty,  jurisdiction,  or  control 
over  the  island  except  for  the  pacification  thereof;  and  it  was 
furthermore  asserted  that  when  that  task  was  accomplished  the 
government  of  the  island  would  be  left  to  the  people.  However, 
in  1901,  a  provision,  known  as  the  "Piatt  Amendment,"  was  in- 
corporated in  the  army  appropriation  act,  which  directed  the 
President  to  turn  the  control  of  Cuba  over  to  the  inhabitants  as 
soon  as  they  established  a  regular  government  and  expressly  recog- 
nized in  their  constitution  the  protection  of  the  United  States  and 
the  right  of  American  intervention  under  certain  circumstances.^ 

In  the  summer  of  1906,  an  armed  uprising  was  fomented  by 
liscontented  natives,  and  after  repeated  appeals  from  American 
citizens  in  Cuba,  the  federal  government  decided  to  intervene. 
A  di\dsion  of  the  army  was  sent  to  the  island,  and  the  entire 
administration  was  assumed  by  Governor  Magoon  representing 
the  authority  of  the  United  States.  American  occupation 
lasted  until  January,  1909,  when  the  government  was  turned  over 
to  the  native  president  and  congress,  duly  elected  in  the  preceding 
November. 

*  Readings,  p.  378. 

'See  Readings,  p.  379,  for  the  circumstances. 


PART   III 
STATE   GOVERNMENT 

CHAPTER  XXII 

THE   CONSTITUTIONAL   BASIS  OF   STATE   GOVERNMENT 

Hamilton  believed  that  contests  between  the  state  and  federal 
governments  would  generally  end  in  favor  of  the  former,  and  that 
there  was  a  greater  probability  of  "  encroachment  by  the  members 
upon  the  federal  head  than  by  the  federal  head  upon  the  mem- 
bers." Jefferson  looked  upon  the  national  government  as  princi- 
pally the  agent  of  the  states  in  the  conduct  of  their  foreign  affairs; 
and  in  the  early  days  of  the  repubHc  it  was  quite  common  for 
men  in  politics  to  leave  prominent  places  in  the  federal  govern- 
ment to  accept  high  offices  in  their  respective  commonwealths. 
When  Mr.  Jay,  who  had  resigned  the  Chief  Justiceship  of  the 
Supreme  Court,  was  tendered  a  reappointment  by  President 
Adams,  he  rephed:  "I  left  the  bench  perfectly  convinced  that 
under  a  system  so  defective  it  would  not  obtain  the  energy,  weight, 
and  dignity  which  was  essential  to  its  affording  due  support  to  the 
national  government;  nor  acquire  the  public  confidence  and  re- 
spect which,  as  the  last  resort  of  the  justice  of  the  nation,  it  should 
possess." 

Obviously,  fimdamental  changes  have  occurred  in  our  federal 
system  since  Jay  wrote  these  depreciatory  words  concerning  the  dig- 
nity of  the  federal  judiciary.  The  Civil  War  and  the  adoption  of 
the  Thirteenth,  Fourteenth,  and  Fifteenth  Amendments  have 
taken  away  from  the  states  an  enormous  domain  of  power  which 
they  previously  enjoyed.  Our  national  government  has  risen 
in  popular  esteem;  statesmen  now  look  upon  local  politics  princi- 
pally as  a  means  of  advancement  to  federal  honors;   the  growth 

428 


The  Constitutional  Basis  of  State  Government    429 

of  national  party  organization  has  subordinated  state  to  national 
politics,  and  the  failure  of  state  governments  to  remedy  many 
of  the  abuses  connected  with  trusts  and  corporations  has  led  the 
people  to  turn  to  the  national  government  for  relief.  The  su- 
premacy of  federal  law^  and  the  growing  practice  of  corporations 
and  individuals  to  resort,  whenever  possible,  to  federal  tribunals  in 
the  protection  of  private  property  rights,  have  given  a  weight  to 
the  national  government  which  its  founders  had  slight  reason 
to  suspect  it  would  ever  secure.  Whatever  view  we  may  take  of 
the  old  struggle  over  states'  rights,  the  fact  remains  that  in  law 
and  in  political  consciousness  the  nation  is  now  first.  The 
national  government  is  not  a  light  superstructure  resting  upon 
the  soUd  foundations  of  state  governments;^  the  national  Con- 
stitution furnishes  the  broad  legal  basis  for  the  whole  system, 
for  it  is  within  the  sphere  marked  out  by  that  Constitution  and 
guarded  by  the  federal  judiciary  that  commonwealth  govern- 
ments must  operate.^ 

*  See  Readings,  p.  140. 

^  It  will  be  remembered  that  thirty-three  of  the  forty-six  commonwealths 
composing  the  Union  have  been  admitted  by  the  national  government,  some- 
times with  conditions. 

^  A  clear  idea  of  the  concrete  nature  of  this  control  over  state  activities 
by  the  federal  courts  may  be  gained  from  the  following  summary  by  Pro- 
fessor R.  B.  Scott:  "It  has  been  held  that  state  boards  and  commissions, 
attorneys-general  and  prosecuting  attorneys,  may  be  enjoined  from  putting 
into  effect  a  schedule  of  railroad  rates,  or  gas,  telegraph,  or  stockyard  rates, 
alleged  to  be  invalid  as  working  a  deprivation  of  property  without  due  pro- 
cess of  law  or  otherwise  violating  the  federal  Constitution.  State  officers 
have  been  restrained  from  levying  taxes  on  the  ground^that  they  were  attempt- 
ing to  act  without  lawful  authority.  A  cancellation'or  revocation  of  Ucense 
to  do  corporate  business  because  of  the  violation  of  state  laws  has  been 
enjoined.  The  enforcement  of  state  ordinances  has  been  prevented  and 
seizure  of  property  under  a  dispensary  law  has  been  restrained.  .  .  .  Fur- 
thermore it  is  to  be  noted  that  in  addition  to  the  cases  where  purely  negative 
control  has  been  exercised,  there  are  instances  of  the  grant  of  positive  reme- 
dies by  the  federal  courts  against  state  and  local  officers ;  e.g.,  in  compelling 
through  writ  of  mandamus  the  levy  of  a  tax' to  pay  a  judgment  on  township 
bonds.  These  cases  have  been  confined  to  no  locality;  North  and  South, 
East  and  West  have  felt  the  heavy  hand  of  the  national  government.  Nor 
has  such  control  been  restricted  to  a  single  field  of  state  law;  criminal  as  well 
as  civil  liability  to  the  state  has  been  involved."  "The  Increased  Control  of 
State  Activities  by  the  Federal  Courts,"  in  the  Political  Science  Review  for 
August,  1909. 


430  American  Government  and  Politics 


Fundamental  Constitutional  Limitations  on  State  Governments 

The  boundaries  and  nature  of  this  sphere  of  power  reserved 
to  the  several  commonwealths  are  to  be  imderstood  by  an  exami- 
nation of  the  fundamental  limitations  on  state  governments  laid 
down  in  the  federal  Constitution/  and  also  the  chief  judicial  deci- 
sions interpreting  them  in  practice. 

1.  The  first  groups  of  limitations  relate  to  the  taxing  power  of 
the  state.  States  cannot  lay  and  collect  imposts  and  duties  upon 
exports  and  imports  —  that  is,  upon  articles  in  the  hands  of  any 
person  who  sends  them  to,  or  receives  them  from,  foreign  countries 
directly,  —  except  to  defray  expenses  incurred  in  the  execution  of 
inspection  laws,  and  then  only  with  the  consent  of  Congress. 

A  duty  upon  imports,  said  the  Supreme  Court  in  the  case  of 
Brown  v.  Maryland,^  is  not  merely  a  duty  on  the  act  of  importa- 
tion, but  it  is  a. duty  on  the  thing  imported  as  well.  "When  the 
importer  has  so  acted  upon  the  thing  imported  that  it  has  become 
incorporated  and  mixed  up  with  the  mass  of  property  in  the 
country,  it  has,  perhaps,  lost  its  distinctive  character  as  an  im- 
port and  has  become  subject  to  the  taxing  power  of  the  state; 
but  while  remaining  the  property  of  the  importer  in  his  warehouse, 
in  the  original  form  or  package  in  which  it  was  imported,  a  tax 
upon  it  is  too  plainly  a  duty  on  imports  to  escape  the  prohibition 
of  the  Constitution."  ^  Thus  foreign  commerce  is  protected  en- 
tirely from  impediments  which  might  be  devised  by  state  govern- 
ments. 

2.  Analogous  to  this  provision  is  the  clause  which  forbids  any 
state  to  lay  a  tonnage  duty  without  consent  of  Congress.  The 
word  "tonnage"  means  the  entire  internal  capacity  or  contents 
of  a  vessel  or  ship  expressed  in  tons  of  one  hundred  cubical  feet 
each.  States  may  tax  the  ships  of  their  citizens  as  property  valued 
as  such;  but  it  is  clear  and  undeniable,  the  Supreme  Court  has 
held, "  that  taxes  levied  by  a  state  upon  ships  and  vessels  as  instru- 
ments of  commerce  and  ni^igation  are  within  that  clause  of  the 

^  Readings,  p.  391. 

^12  Wheaton,  419. 

^  When  any  state,  with  consent  of  Congress,  lays  duties  on  imports  or 
exports,  the  net  proceeds  of  all  such  duties  must  be  paid  into  the  treasury  of 
the  United  States. 


The  Constitutional  Basis  of  State  Government    431 

instrument  which  prohibits  the  states  from  levying  any  duty  of 
tonnage  wdthout  the  consent  of  Congress;  and  it  makes  no  differ- 
ence whether  the  ships  or  vessels  taxed  belong  to  the  citizens  of 
the  state  which  levies  the  tax  or  to  the  citizens  of  another  state, 
as  the  prohibition  is  general,  withdrawing  altogether  from  the 
states  the  power  to  lay  any  duty  of  tonnage  under  any  circum- 
stances without  the  consent  of  Congress."  ^ 

3.  No  state  can  lay  a  tax  on  the  property,  lawful  agencies,  and 
instrumentaUties  of  the  federal  government  or  on  federal  fran- 
chises as  such.  This  principle  is  not  expressed  in  the  Constitu- 
tion, but  it  was  derived,  with  liis  usual  logic,  by  Chief  Justice  Mar- 
shall from  the  nature  of  the  federal  system  itself.  The  power  to 
create  impHes  the  power  to  preserve;  the  power  to  tax  is  the  power 
to  destroy,  and  if  wielded  by  a  different  hand  is  incompatible  with 
the  power  to  create  and  preserve;  therefore  if  the  states  could  tax 
federal  instrumentahties,  they  could  destroy  a  union  which  was 
meant  to  be  indestructible.  According  to  this  doctrine,  states 
cannot  tax  branches  of  a  United  States  bank,  federal  bonds, 
federal  franchises,  or  by  taxation  "retard,  impede,  burden,  or  in 
any  manner  control  the  operation  of  the  constitutional  laws 
enacted  by  Congress  to  carry  into  execution  the  powers  vested  in 
the  general  government."  - 

The  early  doctrine  that  the  states  cannot  in  any  way  touch  a 
federal  instrumentality  has  been  modified  more  recently  to  the 
effect  that  they  cannot  interfere  with  such  an  instrumen- 
taUty  in  such  a  manner  as  to  impair  its  efficiency  in  perform- 
ing the  function  which  it  was  designed  to  serve.  A  state,  for 
example,  cannot  tax  federal  bonds,  but  it  may  tax  the  buildings 
and  other  property  of  a  national  bank  chartered  by  the  federal 
government.  "It  is  manifest,"  said  the  Supreme  Court,  "that 
exemption  of  federal  agencies  from  state  taxation  is  dependent  not 
upon  the  nature  of  the  agents  or  upon  J;he  mode  of  their  constitu- 
tion, or  upon  the  fact  that  they  are  agents,  but  upon  the  effect 
of  the  tax;  that  is,  upon  the  question  whether  the  tax  does  in  truth 
deprive  them  of  the  power  to  serve  the  government  as  they  were 
intended  to  serve  it,  or  does  hinder  the  efficient  exercise  of  their 
power.     A  tax  upon  their  property  has  no  such  necessary  effect. 

'  State  Tonnage  Tax  Cases,  1 2  Wallace,  204. 

'4  Wheaton,  316;  Weston  v.  Charleston,  2  Peters,  444. 


432  American  Government  and  Politics 

It  leaves  them  free  to  discharge  the  duties  they  have  undertaken 
to  perform.  A  tax  upon  their  operations  is  a  direct  obstruction 
to  the  exercise  of  federal  powers."  ^ 

^  4.  In  the  exercise  of  its  police  power  and  power  of  taxation  a 
state  may  not  seriously  interfere  with  interstate  commerce;  ^ 
but  it  may  pass  laws  relative  to  matters  which  are  local  in  charac- 
ter, even  though  they  do  affect  in  some  way  such  commerce. 
For  example,  the  Supreme  Court  sustained  a  law  of  Kentucky 
providing  for  the  inspection  of  illuminating  oils  and  imposing  a 
penalty  upon  persons  selUng  oil  branded  as  unsafe  by  state  in- 
spectors—  this  law  being  in  the  interests  of  public  safety  — 
although  it  certainly  interfered  with  the  right  of  citizens  of  other 
states  to  sell  oil  freely  in  that  commonwealth.^  Likewise  a  quar- 
antine law  of  the  state  of  Louisiana  was  sustained,  although  it 
incidentally  restricted  freedom  of  commerce.  States  may  prohibit 
the  running  of  freight  trains  on  Sundays;  forbid  the  employment 
of  color-blind  engineers  on  interstate  as  well  as  local  trains;  re- 
quire the  heating  of  cars ;  regulate  speed  within  city  Hmits;  and 
compel  the  guarding  of  bridges  and  the  protection  of  crossings 
even  though  such  provisions  affect  interstate  as  well  as  local 
business. 

State  actions  which  constitute  an  invasion  of  federal  power 
may  likewise  be  illustrated  by  concrete  cases.  A  law  of  Minnesota 
requiring  the  inspection  of  all  meat  twenty-four  hours  before 
slaughtering,  designed  in  the  interests  of  pure  food,  was  declared 
invahd,  because  it  necessarily  prevented  the  transportation,  into 
that  commonwealth,  of  meats  from  animals  slaughtered  in  other 
states  where,  of  course,  no  such  inspection  could  be  provided.^ 
The  state  of  Illinois  passed  an  act  regulating  the  making  of  rail- 
way rates  within  the  state;  but  when  it  attempted  to  apply  the 
rule  to  a  shipment  beginning  in  Illinois  and  ending  in  another 
state,  the  Supreme  Court»of  the  United  States  by  proper  process 
interfered,  and  declared  that  the  regulation  of  interstate  com- 
merce from  the  beginning  of  a  shipment  to  its  end  was  confidec 
exclusively  in  Congress.^ 

^Railroad  Company  v.  Peniston,  18  Wallace,  5. 

^  See  above,  chap.  xix. 

3  Patterson  v.  Kentucky,  97  U.  S.  R.,  501. 

*That  is,  by  Minnesota.     Minnesota  v.  Barber,  136  U.  S.  R.,  3i3» 

''ii8U.S.R.,557. 


The  Constitutional  Basis  of  State  Government    433 

Again,  a  state  cannot  impose  a  tax  upon  all  freight  carried  by 
a  railway/  but  it  can  tax  the  franchise  of  a  railway  company, 
measuring  the  extent  of  its  value  by  the  receipts,  including  the 
receipts  from  interstate  and  foreign  commerce. 

Another  important  question  relative  to  interstate  commerce 
has  been  raised  by  state  laws  prohibiting  the  manufacture  and 
sale  of  intoxicating  liquors.  In  1873-88,  Iowa  passed  such  laws, 
and  the  Supreme  Court  held  them  void,  in  so  far  as  they  prohibited 
the  sale,  by  the  importer,  of  Uquor  brought  in  from  other  states.^ 
In  1890,  Congress  passed  an  act  providing  that  fermented  and 
other  intoxicating  liquors  transported  into  any  state  or  terri- 
tory should  be  subject  (as  to  sale)  to  the  operation  of  the  laws 
of  such  state  or  territory  to  the  same  extent  and  in  the  same 
manner  as  though  they  had  been  produced  there. '  In  other  words, 
the  Supreme  Court  held  that  prohibiting  the  importation  of  intoxi- 
cating liquor  for  sale  was  an  interference  with  interstate  commerce 
— a  subject  referred  by  the  Constitution  to  the  federal  government; 
and  Congress  permitted  the  state  to  make  a  regulation  of  such 
commerce.  This  law  was  upheld,  however,  by  the  Supreme 
Court  in  a  decision  in  which  it  was  stated  that  in  so  legislat- 
ing Congress  had  not  attempted  to  delegate  to  a  commonwealth 
the  power  to  interfere  with  interstate  commerce,  but  had  simply 
made  a  uniform  regulation  under  its  power  to  control  this 
commerce.^ 

5.  The  state  has  practically  no  power  over  the  monetary  system. 
It  may  charter  and  regulate  state  banks,  but  it  cannot  coin  money, 
emit  bills  of  credit,  or  make  anything  but  gold  and  silver  coin  ^  legal 
tender  in  the  payment  of  debts.  It  may,  however,  authorize  a 
state  bank  or  state  banking  association  to  issue  notes  for  circu- 
lation, but  the  exercise  of  this  power  is  practically  prohibited  by 
the  act  of  Congress,  passed  in  1866,  laying  a  tax  of  ten  per  cent 
upon  such  notes.  The  effect  of  this  act  was  to  make  it  impossible, 
on  account  of  the  weight  of  the  tax,  for  state  banks  to  issue  notes 
at  all.  The  law  was  upheld  by  the  Supreme  Court  of  the  United 
States  for  the  reason,  among  others,  "that  the  judicial  cannot  pre- 
scribe to  the  legislative  department  of  the  government  limitations 
upon  the  exercise  of  its  acknowledged  powers."  ^ 

*  See  Readings,  p.  348.  ^  Leisy  v.  Hardin,  135  U.  S.  R.,  100. 

3/»  re  Rahrer,  140  U.  S.  R.,  545.       ''  Coined  by  the  federal  government. 

Veazie  Bank  v.  Fenno,  8  Wallace,  533. 


434  American  Government  and  Politics 

6.  The  original  Constitution  also  contains  some  fundamental 
limitations  on  the  power  of  states  over  criminal  legislation.  It 
provides  that  no  state  shall  pass  any  bill  of  attainder — that  is,  a 
legislative  act  which  inflicts  punishment  upon  some  person  with- 
out ordinary  judicial  trial.  This  device  had  been  frequently 
used  for  partisan  purposes  in  the  British  Parliament,  and  the 
framers  of  the  Constitution  therefore  desired  to  prevent  such  an 
abuse  of  legislative  authority  in  the  United  States.  No  state 
can  pass  an  ex  post  facto  law  —  that  is,  one  which  imposes  a  pun- 
ishment for  an  act  which  was  not  punishable  when  committed; 
or  imposes  additional  punishment  to  that  prescribed  when  the 
act  was  committed;  or  changes  the  rules  of  evidence  so  that 
different  or  less"  testimony  (to  the  serious  disadvantage  of  the 
accused)  is  sufficient  to  convict  him  than  was  required  when  the 
deed  in  question  was  committed.^  This  limitation  on  the  states 
was  designed  to  protect  citizens  from  punishment  by  legislative 
acts  having  retrospective  operation,  and  appUes  only  to  criminal 
legislation." 

7.  To  protect  citizens  in  their  property  rights  the  Constitution 
provides  that  no  state  shall  pass  any  law  impairing  the  obligation 
of  contracts.  The  obligation  of  contract  is  the  body  of  law  exist- 
ing at  the  time  a  'contract  is  made,  defining  and  regulating  it, 
and  making  provision  for  its  due  enforcement.  For  example, 
one  Crowninshield,  on  March  22, 181 1,  gave  a  note  to  one  Sturges; 
and  shortly  afterward  the  state  of  New  York,  in  which  the  note 
was  dated,  passed  a  bankruptcy  law  under  which  Crowninshield 
became  a  bankrupt,  and  by  paying  Sturges  a  portion  of  what  he 
owed,  claimed  the  right  to  be  discharged  from  all  of  the  remainder. 
This  law  with  reference  to  all  debts  contracted  before  its  passage 
was  declared  invalid  by  the  Supreme  Court  as  impairing  the  obH- 
gation  of  contract.^ 

The  term  contract  is  used  in  this  clause  with  a  far  wider  meaning 
than  in  ordinary  private  law.  It  means  "a  legally  binding  agree- 
ment in  respect  to  property,  either  expressed  or  implied,  execu- 
tory or  executed,  between  private  parties,  or  between  a  common- 
wealth and  a  private  party  or  parties;  or  a  grant  from  one  party 
to  another;    or  a  grant,  charter,  or  franchise,  from  a  common- 

^  Cummings  v.  Missouri,  4  Wallace,  277. 


»  Calder,  v.  Bull,  3  Dallas,  386. 

3  Sturges  V.  Crowninshield,  4  Wheaton,  117. 


The  Constitutional  Basis  of  State  Government    435 

wealth  to  a  private  party  or  private  parties."  ^  This  wide  inter- 
pretation of  the  term  has  given  the  clause  a  particular  social  and 
economic  significance,  because  it  has  been  applied  to  the  protec- 
tion of  the  franchises,  charters,  and  privileges  secured  by  private 
corporations  from  state  legislatures.  The  Supreme  Court,  for 
example,  held  that  a  charter  secured  by  Dartmouth  College  from 
King  James  constituted  a  contract  with  that  corporation  which 
the  state  was  bound  to  respect  on  securing  its  independence, 
and  that  a  law  of  the  state  of  New  Hampshire  designed  to  control 
the  college  and  its  funds  was  an  impairment  of  the  obligation  of 
that  contract.^  Again  in  the  case  of  the  Bank  of  Ohio  v.  Knoop,  ^ 
the  Supreme  Court  held  that  a  charter  to  a  bank  in  which  the 
state  agreed  to  tax  the  corporation  at  the  rate  of  only  6  per  cent 
on  its  dividends  was  a  contract,  and  that  a  subsequent  law  of  the 
state  raising  the  rates  on  the  bank  so  chartered  was  an  impairment 
of  the  obligation  of  contract.^  Under  a  strict  application  of  this 
principle,  a  state  legislature  having  once  granted  away  special 
privileges  to  corporations  would  be  bound  to  maintain  them 
forever  if  no  specific  provisions  were  made  in  the  grant  as  to  times 
and  limitations. 

The  Supreme  Court,  however,  has  refused  to  extend  the  term 
contract  to  several  forms  of  agreement  between  a  state  and  its 
citizens.  For  example,  appointment  to  a  public  office  for  a  defi- 
nite term  at  a  fixed  salary  is  not  a  contract,  and  a  state  impairs 
no  obligation  when  it  abolishes  the  office.  A  grant  of  power  to  a 
municipal  corporation  by  a  state  legislature,  a  bounty  law  by 
which  a  state  agrees  to  pay  so  much  bounty  on  certain  commod- 
ities produced  within  its  borders,  or  a  state  license  to  sell  liquor 
for  a  certain  term  of  years  is  not  a  contract. 

It  should  be  noted  also  that  the  Court  will  declare  a  law  invalid 
as  impairing  the  obhgation  of  contract  only  when  it  is  retrospective, 
that  is,  when  it  applies  to  contracts  made  before  its  passage;  and  if 
a  state  provides  in  its  constitution  or  laws  for  future  revision  of  char- 
ters, franchises,  and  other  forms  of  contract,  it  thereby  places,  in  the 
body  of  the  law,  which,  as  we  have  seen,  constitutes  the  obligation 

*  Burgess,  Political  Science  and  Constitutional  Law,  Vol.  I,  p.  235. 
2  In  the  famous  case  of  Dartmouth  v.  Woodward,  4  Wheaton,  518,  decided 
in  1819. 

'  16  Howard,  369,  decided  in  1853. 

<  The  Court  has,  however,  somewhat  limited  this  interpretation. 


43^  American  Government  and  Politics 

of  contract,  a  provision  securing  henceforward  the  right  to  alter 
the  terms  of  new  franchises  and  privileges  without  violating  this 
clause  of  the  federal  Constitution.  All  the  states  now  safeguard, 
by  this  precautionary  measure,  their  right  to  control  privileges 
once  granted,  so  that  it  is  no  longer  possible  for  private  corpora- 
tions to  secure  either  honestly  or  by  corrupt  means  priceless 
franchises  and  then  to  defend  them  against  withdrawal  or  modifi- 
cation by  taking  shelter  under  the  contract  clause  of  the  federal 
Constitution.  The  general  tenor  of  the  provisions  securing  state 
legislatures  from  the  strangUng  effect  of  this  clause  is  illustrated 
by  this  extract  from  the  constitution  of  Wisconsin:  "All  general 
laws  or  special  acts,  enacted  under  the  provisions  of  this  section 
[deaHng  with  corporations],  may  be  altered  and  repealed  by  the 
legislature  at  any  time  after  their  passage." 

8.  By  far  the  most  important  guarantees  for  personal  and  prop- 
erty rights  are  to  be  found  in  the  general  clauses  of  the  Fourteenth 
Amendment,  which,  for  practical  purposes,  place  in  the  hands  of 
the  federal  judiciary  the  power  of  controlling  state  legislation 
on  most  important  matters.  According  to  section  i  of  that 
Amendment,  no  state  shall  make  or  enforce  any  law  which  may 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States;  no  state  may  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  law.  In  order  to  under- 
stand the  full  import  of  the  several  terms  employed  in  this  brief 
but  significant  section,  it  is  necessary  to  examine  them  in  the 
light  of  judicial  decisions,  for  in  themselves  they  furnish  slight 
clew  to  the  real  legal  processes  which  they  secure. 

At  the  outset,  what  are  the  privileges  and  immunities  of  citizens 
of  the  United  States  which  cannot  be  abridged  by  a  state?  The 
nationalist  school  of  publicists,  represented  by  Professor  Burgess, 
contend,  and  advance  sound  historical  arguments  to  show,  that 
it  was  the  purpose  of  the  men  who  framed  this  clause  to  national- 
ize civil  liberty,  by  setting  up  against  the  states  those  privileges 
and  immunities  which  of  right  belong  to  the  citizens  of  all  free 
governments  —  that  is,  in  particular,  those  privileges  and  im- 
munities guaranteed  to  citizens  against  the  federal  government  in 
the  first  ten  amendments.^ 


See  Readings,  p.  136. 


d 


The  Constitutional  Basis  of  State  Government    437 

The  Supreme  Court  of  the  United  States,  however,  has  refused 
to  accept  this  interpretation;  and  has  held  that  there  is  a  differ- 
ence between  the  rights  belonging  to  a  citizen  of  the  United  States 
as  such  and  those  belonging  to  a  citizen  of  a  state  as  such,  and  that 
the  latter  must  depend  for  their  security  and  protection  upon  the 
state,  as  before  the  adoption  of  the  Fourteenth  Amendment.  If 
it  had  been  the  intention  of  the  Amendment,  the  Court  held, 
to  vest  the  protection  of  the  whole  domain  of  civil  liberty  in  the 
hands  of  the  federal  government,  the  result  would  have  been  a  revo- 
lution ;  Congress  would  have  passed  supplementary  laws  limiting 
and  restricting  the  exercise  of  legislative  power  by  the  states  in 
their  most  ordinary  and  usual  functions;  and  finally  the  Court 
would  thus  be  a  perpetual  censor  upon  all  state  legislation  rela- 
tive to  the  civil  rights  of  the  citizen/  The  Court  thereupon 
proceeded  to  enumerate  some  of  the  rights  of  "citizens  of  the 
United  States"  in  contradistinction  to  the  rights  which  they 
enjoy  as  citizens  of  states.  A  citizen  of  the  United  States  has  a 
right  to  approach  the  seat  of  government  to  assert  any  claim  that 
he  may  have  upon  it,  transact  business  with  it,  invife  its  protection, 
share  its  offices,  and  engage  in  its  administration;  he  has  access  to 
its  seaports,  sub-treasuries,  land  offices,  and  courts  of  justice  in  the 
several  states;  he  can  claim  the  protection  of  the  federal  govern- 
ment in  the  defence  of  his  life,  liberty,  and  property  on  the  high 
seas  or  when  within  the  jurisdiction  of  a  foreign  government; 
he  may  join  with  other  citizens  in  the  peaceable  assembling  and 
petitioning  for  a  redress  of  grievances;  he  has  the  privilege  of  the 
writ  of  habeas  corpus,  and  the  right  to  use  the  navigable  waters 
of  the  United  States.  While  these  do  not  exhaust  all  of  the 
possible  privileges  and  immunities  enjoyed  by  a  citizen  of  the 
United  States  as  such,  they  indicate  the  character  of  the  narrow 
interpretation  placed  upon  the  clause  by  the  Supreme  Court.^ 

By  far  the  most  important  part  of  the  Fourteenth  Amendment 
is  a  brief  sentence  which  forbids  a  state  to  deprive  any  person  ^ 
of  life,  liberty,  or  property,  without  due  process  of  law.  The 
term  "life,"  as  interpreted  by  the  Supreme'Court,  means  something 
more  than  mere  animal  existence;  and  the  prohibition  against  its 

'  This  is  the  language  of  the  Court. 

'Slaughter  House  Cases,  16  Wallace,  36. 

^  A  corporation  is  a  "  person  "  in  the  eye  of  the  law. 


43^  American  Government  and  Politics 

deprivation  extends  to  all  those  limbs  and  faculties  by  which  life 
is  manifested.  "The  provision  equally  prohibits  the  mutilation 
of  the  body  by  the  amputation  of  an  arm  or  a  leg,  or  the  putting  out 
of  an  eye,  or  the  destruction  of  any  other  organ  of  the  body 
through  which  the  soul  communicates  with  the  outer  world."  ^ 
The  term  "liberty"  used  in  this  clause  does  not  mean  Hberty  in 
the  abstract,  but  the  freedom  of  the  individual  to  do  what  he  can 
within  the  limits  of  the  law  properly  imposed  and  duly  enforced, 
and  freedom  from  interference  by  governmental  authorities  so 
long  as  he  does  not  transgress  the  legal  bounds  to  his  sphere  of 
individual  action.^  The  term  "property"  is  not  limited  to  tangi- 
ble goods  having  an  exchange  value,  but  it  extends  to  every 
form  of  vested  right  which  the  possessor  has  legally  acquired.'* 
Of  none  of  these  things  may  any  person  be  deprived  without  due 
process  of  law;  but  what  is  due  process  of  law?  The  Supreme 
Court  has  steadily  refused  to  define  "  due  process  "  in  the  abstract, 
and  it  is  not  possible  to  make  any  very  satisfactory  generalization. 
It  may  be  said,  however,  that  due  process  of  law,  as  required  by 
the  Fourteenth"  Amendment,  does  not  necessitate  the  use,  by  the 
state,  of  all  those  legal  processes,  such  as  indictment  by  grand  jury 
and  trial  by  petty  jury  with  unanimous  verdict,  prescribed  in  the 
first  ten  amendments  to  the  federal  Constitution.  Due  process 
of  law,  said  the  Court  in  one  case,  is  "  due  process  according  to  the 
law  of  the  land,  and  the  law  of  the  land  is  the  law  of  the  state."  * 
In  another  case,  due  process  of  law  was  interpreted  to  mean  "a 
course  of  legal  proceedings  according  to  those  rules  and  principles 
which  have  befen  established  in  our  system  of  jurisprudence  for  the 
protection  and  enforcement  of  private  rights."^  And  in  still 
another  case,  the  Court  declared  that  there  are  certain  immu- 
table principles  of  free  government  which  control  the  law  of  every 
state.*^  In  other  words,  the  Court  seems  inclined  to  hold  that  any 
law  of  a  state  is  not  invalid  under  this  due  process  clause  unless  it 
transgresses  certain  theories  of  government  existing  nowhere  in 

^Munn  V.  Illinois,  94  U.  S.  R.,  113. 

^  For  Mr.  Roosevelt's  view  of  the  social  implication 3  of  the  term,  see 
ings,  p.  286. 

2  Campbell  z;.  Holt,  115  U.  S.  R.,  120. 
4  Walker  v.  Sauvinet,  92  U.  S.  R.,  90. 
^Pennoyer  v.  Neff,  95  U.  S.  R.,  714. 
«Holden  v.  Hardy,  169  U.  S.  R.,  366. 


The  Constitutional  Basis  of  State  Government    439 

the  law,  but  only  in  the  minds  of  the  judges  rendering  the  opinion.* 
The  best  way  of  ascertaining  the  full  import  of  this  phrase  is  to 
examine  its  application  to  certain  classes  of  state  laws. 

(a)  What  is  due  process  of  law  in  criminal  cases?  A  law  of 
California  provided  that  a  person  could  be  prosecuted  for  felony 
by  information  after  examination  and  commitment  without  in- 
dictment by  a  grand  jury.  Under  this  law  one  Hurtado  was 
charged  with  the  crime  of  murder  on  information  without  pre- 
Uminary  grand  jury  hearing  and  indictment,  and,  after  jury  trial 
in  the  ordinary  manner,  was  found  guilty  and  condemned  to  death. 
Was  Hurtado  to  be  deprived  of  life  and  liberty  without  due  pro- 
cess of  law?  The  Court  replied  that  due  process  of  law  under  the 
Fourteenth  Amendment  was  different  from  that  of  the  Fifth 
Amendment;  that  it  did  not  require  indictment  by  grand  jury; 
and  that  "any  legal  proceeding  enforced  by  pubHc  authority, 
whether  sanctioned  by  age  and  custom,  or  newly  devised  in  the 
discretion  of  the  legislative  power  in  furtherance  of  the  general 
public  good,  which  regards  and  preserves  these  principles  of 
Hberty  and  justice  [lying  at  the  basis  of  all  our  civil  and  poUtical 
institutions]  must  be  held  to  be  due  process  of  law."  - 

{b)  Due  process  of  law  in  civil  matters  was  defined  in  a  general 
way  in  the  case  of  Walker  v.  Sauvinet,^  in  which  the  court  held  that 
trial  by  jury  in  suits  at  common  law  in  state  courts  was  not  a 
privilege  which  the  states  were  forbidden  to  abridge  by  the  Four- 
teenth Amendment,  and  that  the  requirement  of  the  Constitu- 
tion was  met  if  a  trial  was  had  according  to  the  set  course  of 
judicial  proceedings.  In  other  words,  any  process  which  estab- 
lishes reasonable  security,  full  notice,  and  satisfactory  protection 
to  persons  involved  in  civil  suits  may  be  regarded  as  due  process. 

{c)  In  the  imposition  of  taxes  states  must  follow  due  process ;  and 
whenever  a  tax  is  imposed  according  to  the  valuation  of  property, 
due  process  merely  requires  general  notice  to  the  owner  and  a 
hearing  of  complaints  so  as  to  give  him  a  chance  to  contest  his 
liability;  personal  notice  is  not  necessary.  The  right  to  be  heard 
is  not  a  necessary  part  of  due  process  in  the  imposition  of  poll 
and  license  taxes,  specific  taxes  on  things,  persons,  or  corporations, 
or  many  other  kinds  of  taxes  definitely  fixed  by  legislative  enact- 
ment. 

*  Fpr  a  concrete  illustration,  see  Readings y  pp.  617  and  619. 
2  Hurtado  v.  California,  no  U.  S.  R.,  516.        '92  U.  S.  R.,  90. 


440  American  Government  and  Politics 

(d)  It  is  in  legislation  controlling  corporations  and  protecting 
labor,  that  state  legislatures  most  frequently  come  into  conflict 
with  due  process  of  law  as  interpreted  by  the  Supreme  Court. 
For  example,  the  legislature  of  Minnesota  created  a  railway 
commission  with  the  power  to  compel  any  common  carrier  to  fix 
such  rates  as  the  commission  should  declare  to  be  equal  and 
reasonable,  and  made  no  provision  for  judicial  review  of  the  rates 
and  charges  so  fixed.  This  law  was  held  unconstitutional  on  the 
ground  that  it  deprived  a  railway  company  of  its  right  to  judicial 
investigation  by  due  process  of  law  under  the  forms  and  with  the 
machinery  provided  for  the  judicial  investigation  of  the  truth  of 
any  matter  in  controversy,  and  substituted  for  this,  as  an  abso- 
lute finality,  the  action  of  a  railway  commission  which  could  not 
be  regarded  as  clothed  with  judicial  functions  or  possessing  the 
machinery  of  a  court  of  justice.^  To  take  another  example: 
the  legislature  of  New  York  passed  a  law  providing  that  no  em- 
ployees should  be  required  or  permitted  to  work  in  bakeries  more 
than  sixty  hours  a  week  or  ten  hours  a  day,  and  the  Supreme 
Court  held  this  law  invalid  on  the  ground  that  it  was  an  un- 
reasonable, unnecessary,  and  arbitrary  interference  with  the 
right  and  liberty  to  contract  in  relation  to  labor  —  the  right  and 
Hberty  to  purchase  and  sell  labor  being  within  the  protection  of 
the  Fourteenth  Amendment.^  Whenever  a  state  regulates  rail- 
way or  other  rates,  its  terms  must  be  "reasonable,"  that  is, 
allow  proper  returns  on  investments.^ 

A  state,  however,  may  do,  under  that  vague  authority  known 
as  the  "poHce  power,"  many  things  which  interfere  with  life, 
liberty,  and  property;  but  the  Court  refuses  to  define  the  term 
police  power,  reserving  to  itself  the  right  to  determine  at  any 
time  whether  any  particular  act  is  warranted  under  that  power 
or  not.  A  broad  interpretation  of  the  term  police  power  would 
give  a  state  the  right  to  do  anything  designed  to  promote  general 
welfare  as  opposed  to  special  privilege.  Indeed,  the  Court  once 
said  that  the  poHce  power  is  the  power  "to  prescribe  regulations 
to  promote  the  health,  peace,  morals,  education,  and  good  order 
of  the  people,  and  to  legislate  so  as  to  increase  the  industries  of 
the  state,  develop  its  resources,  and  add  to  its  wealth  and  its 


'  See  Readings,  p.  615. 

^See  Readings,  p.  617;  note  also  the  dissenting  opinion  by  Mr.   Justice 
Holmes,  ibid.,  p.  619.     ^Reagan  v.  Loan  and  Trust  Co.,  154  U.  S.  R.,  362 


I 


The  Constitutional  Basis  of  State  Government    441 

prosperity."  ^  It  is  evident,  however,  that  such  a  generous 
interpretation  of  the  powers  of  the  state  might  very  well  nullify 
the  provisions  of  the  Fourteenth  Amendment  in  the  hands  of  any 
judiciary  in  sympathy  with  an  increase  in  the  control  exercised 
by  the  state  over  private  rights  in  the  name  of  general  welfare. 

At  all  events  a  state,  under  its  poUce  power,  may  do  many 
definite  things.  It  may,  for  example,  restrict  dangerous  and 
objectionable  trades  to  certain  localities;  it  may  confine  the  in- 
sane or  persons  afflicted  with  contagious  diseases;  it  may  regulate, 
to  a  Umited  extent,  railways  and  other  common  carriers;  and  it 
may  order  the  destruction  of  a  building  in  the  path  of  a  confla- 
gration or  endangering  the  health  and  safety  of  neighbors  and 
passers-by.  It  is  clear,  nevertheless,  that  police  power,  like  that 
other  vague  phrase  "due  process  of  law,"  is  wholly  within  the 
keeping  of  the  judicial  conscience,  and  its  interpretation  depends 
upon  the  general  social  and  political  theories  of  the  judiciary.^ 

The  State  and  Nation 

The  position  of  the  state  in  the  federal  system  is  not  only  fixed 
in  law,  as  defined  by  the  federal  judiciary.  The  state  forms  a  sec- 
tion of  the  great  extra-legal  party  organization  which  dominates 
national  politics  and  often  subordinates  state  issues  to  the  exi- 
gencies of  federal  issues.  The  state  is,  indeed,  the  fundamental 
unit  in  the  national  party  system.  Delegates  to  the  national 
conventions  are  assigned  to  states  in  accordance  with  their  rep- 
resentation in  Congress;  federal  patronage  is  distributed  with  a 
view  to  building  up  the  general  party  organization  within  the 
limits  of  each  commonwealth;  United  States  Senators  are  gener- 
ally party  leaders  within  their  commonwealths,  and  occupy  posi- 
tions of  influence  in  the  national  party  organization;  and 
ambitious  politicians  in  the  state  usually  regard  state  offices  as 
stepping-stones  to  higher  things.  Thus  the  great  nation-wide 
party  organization,  founded  on  national  as  opposed  to  sectional 
interests,  tends  more  and  more  to  bring  the  state  down  from  that 
proud  position  occupied  in  the  beginning  of  our  history. 

The  autonomy  of  the  state  is  furthermore  being  reduced  by  the 
growth  of  national  industries,  interstate  commerce,  and  national 

^Barbier  v.  Connolly,  113  U.  S.  R.,  27. 

2  This  is  based  upon  a  statement  by  Mr.  Justice  Holmes;  see  Readings, 
p.  619.    On  the  subject  of  the  police  power,  see  Readings,  p.  394. 


442  American  Government  and  Politics 

business  organizations  known  as  combinations  and  trusts.  These 
new  forces  making  for  unity  and  centralization  penetrate  to  the 
loneliest  hamlets  in  the  most  thinly  populated  commonwealths/ 
The  regulation  of  these  great  interstate  interests  is  confided  under 
the  Constitution  to  the  federal  government,  which  is  steadily 
multiplying  in  number  and  extent  its  supervisory  activities. 
The  conduct  of  commerce  and  industry  by  corporations  increases 
the  amount  of  legal  business  which  is  taken  out  of  the  hands  of 
the  state  judiciary  and  vested  in  the  federal  courts  under  that 
clause  of  the  Constitution  which  gives  the  latter  authority  and 
jurisdiction  over  smts  between  citizens  of  different  states.' 

While  enumerating  this  multitude  of  restrictions  upon  the 
states,  we  must,  at  the  same  time,  remember  that  an  enormous 
and  important  domain  of  power  is  still  reserved  to  them.  Article 
lo  of  the  amendments  provides  that  the  powers  not  granted  to 
the  United  States  by  the  Constitution  nor  prohibited  by  it  to  the 
states  are  reserved  to  the  states  respectively  or  to  the  people. 
The  regulation,  therefore,  of  almost  all  the  ordinary  affairs  of 
life  is  left  to  the  states.  As  Mr.  Bryce  has  put  it,  "An  American 
may,  through  a  long  life,  never  be  reminded  of  the  federal  govern- 
ment except  when  he  votes  at  presidential  and  congressional  elec- 
tions, buys  a  package  of  tobacco  bearing  the  government  stamp, 
lodges  a  complaint  against  the  post-office,  and  opens  his  trunks 
for  a  custom  house  officer  on  the  pier  at  New  York  when  he 
returns  from  a  tour  in  Europe.  His  direct  taxes  are  paid  to  offi- 
cials acting  under  state  laws.  The  state  or  local  authority  con- 
stituted by  state  statutes  registers  his  birth,  appoints  his  guar- 
dian, pays  for  his  schooling,  gives  him  a  share  in  the  estate  of  his 
father  deceased,  licenses  him  when  he  enters  a  trade  (if  it  be  one 
needing  a  license),  marries  him,  divorces  him,  entertains  civil 
actions  against  him,  declares  him  a  bankrupt,  hangs  him  for 
murder;  the  poHce  that  guard  his  house,  the  local  boards  which 
look  after  the  poor,  control  highways,  impose  water  rates,  manage 
schools  —  all  these  derive  their  legal  powers  from  his  state  alone." 

This,  however,  is  too  strong  a  statement  of  the  case,  for  the 

^  See  Moody,  The  Truth  about  the  Trusts. 

^  For  a  protest  of  a  state  against  this  extension  of  power  of  the  federal 
courts,  see  Readings,  p.  233;  see  also  the  article  by  Professor  Robert  Bruce 
Scott  in  the  American  Political  Science  Review,  for  August,  1909:  "The  In- 
creased Control  of  State  Activities  by  Federal  Courts." 


a 


The  Constitutional  Basis  of  State  Government    443 

individual  does  come  into  contact  with  the  federal  government 
far  more  often  than  it  would  lead  us  to  believe  —  indeed,  far  more 
often  than  when  Mr.  Bryce  wrote  his  epoch-making  work.  Al- 
though he  may  not  be  conscious  of  the  fact,  every  time  he  pur- 
chases a  commodity,  smokes  a  cigar,  or  has  a  glass  of  liquor,  the 
citizen  pays  tribute  to  the  federal  government;  whenever  he 
ships  a  commodity  by  freight  to  a  point  out  of  his  state,  he  pays 
rates  which  are  under  the  supervision  of  the  Interstate  Commerce 
Commission;  the  rural  free  mail  delivery  reaches  him  on  his  farm 
or  in  his  summer  camp  in  the  mountains;  if  he  journeys  from  one 
state  to  another,  he  pays  a  car  fare  which  is  under  the  regulation 
of  the  federal  government.  If  he  be  a  working  man  engaged  in  a 
strike  against  some  large  corporation,  the  chances  are  that  the 
injunction  against  him  will  come  from  a  federal  court,  and  it  will 
be  on  an  order  of  that  court  that  he  is  punished  if  he  disobeys 
the  injunction.  If  he  attempts  to  send  through  the  mails  some 
publication  which  the  post-office  authorities  may  declare  objec- 
tionable, he  may  find  himself  in  the  toils  of  the  federal  law.  It 
is  not  necessary  to  continue  the  enumeration.^  The  federal 
government  is  not  so  far  away  from  the  life  of  the  citizens  as  it 
once  was,  and  as  the  economic  organizations  of  labor  and  capital 
increase  the  extent  and  strength  of  their  ramifications  throughout 
the  social  body,  the  federal  government  will  inevitably  come 
nearer  and  nearer  to  the  private  citizen.  Nevertheless,  the  func- 
tions of  the  state  will  also  increase  in  importance,  and  the  state  as 
a  guardian  of  fundamental  public  and  private  interests  should 
grow  in  the  esteem  of  the  citizen. 

The  Admission  of  New  States 

The  federal  Constitution  contains  no  details  as  to  the  way  in 
which  a  new  state  may  be  admitted  to  the  Union.  It  simply 
provides  that  new  states  may  be  admitted  by  Congress,  and  that 
no  new  state  shall  be  formed  out  of  another  state  or  by  the  junction 
/  of  two  or  more  parts  of  different  states  without  the  consent  of  the 
legislatures  concerned  and  Congress  as  well.  A  variety  of  meth- 
ods have  been  employed  in  the  admission  of  new  states.  Texas, 
for  example,  was  admitted  to  the  Union  in  1845  as  an  indepen- 

*  Note  also  the  operations  of  the  pure  food  law,  federal  quarantine,  forestry 
service,  irrigation  laws,  the  activities  of  the  Department  of  Agriculture  on 
behalf  of  the  farmers,  etc. 


444  American  Government  and  Politics 

dent  republic  by  resolution  of  Congress;  and  California  never  went 
through  the  territorial  stage.  The  inhabitants  of  that  region 
shortly  after  the  cession  from  Mexico  drew  up  a  constitution, 
demanded  admission  to  the  Union,  and  Congress  yielded. 

The  ordinary  process  of  admitting  a  state  is  simple.  The 
inhabitants  of  a  territory  present  a  petition  to  Congress  praying 
for  admission  to  the  Union.  If  the  petition  is  granted,  Congress 
passes  an"enabHng  act"  authorizing  the  voters  of  that  territory 
to  call  a  convention  to  frame  their  constitution  and  thus  prepare 
to  take  their  position  among  the  other  commonwealths.  If  the 
people  of  the  territory  comply  with  the  conditions,  Congress  then 
passes  a  resolution  declaring  the  said  territory  to  be  a  state  and 
admitted  to  the  Union;  and  the  fact  is  generally  announced  to  the 
world  by  a  formal  executive  proclamation.  In  several  instances, 
notably  in  the  cases  of  Missouri,  Kansas,  Utah,  and  Oklahoma, 
Congress  has  entertained  objections  to  the  constitution  drafted 
by  the  territory  demanding  statehood,  and  has  delayed  admission 
until  certain  suggested  amendments  were  adopted. 

The  only  constitutional  question  of  any  importance  which  has 
arisen  in  connection  with  the  admission  of  new  states  is  whether 
Congress  has  the  power  to  impose  on  a  commonwealth  coming  into 
the  Union  any  limitations  in  addition  to  those  laid  down  in  the 
federal  Constitution.  It  is  the  theory  that  all  the  states  in  the 
Union  are  equal  in  rights  and  privileges.  The  famous  Northwest 
Ordinance  of  1787,  continued  by  Congress  in  1789,  declared  that 
the  new  states  created  in  that  region  should  be  admitted  "on 
an  equal  footing  with  the  original  states  in  all  respects  whatever." 
On  the  admission  of  Ohio  in  1802,  however.  Congress  forced 
that  state  to  agree  not  to  tax  for  a  period  of  five  years  any  public 
lands  sold  within  its  borders  by  the  United  States.  The  enabhng 
act  for  Nevada,  passed  in  1864,  while  declaring  that  the  state 
should  be  admitted  into  the  Union  "upon  an  equal  footing  with 
the  original  states  in  all  respects  whatsoever,"  specifically  re-M 
quired  that  its  constitution  should  not  be  repugnant  to  the  prin- 
ciples  of  the  Declaration  of  Independence,  that  perfect  religious 
toleration  should  be  secured,  and  that  the  land  belonging  to  non- 
resident citizens  of  the  United  States  should  not  be  taxed  any 
higher  than  the  lands  of  residents.^  |H 

*  See  Readings,  p.  397;  Dunning,  Essays  on  Civil  War  and  Reconstruction, 
pp.  305  ff. 


The  Constitutional  Basis  of  State  Government    445 

The  Supreme  Court  has  declared,  in  a  case  involving  limita- 
tions on  Illinois  that  "whatever  the  limitation  upon  her  powers 
as  a  government  whilst  in  a  territorial  condition,  whether  from  the 
Ordinance  of  1787,  or  the  legislation  of  Congress,  it  ceased  to  have 
any  operative  force  except  as  voluntarily  adopted  by  her  after 
she  became  a  state  of  the  Union.  On  her  admission  she  at  once 
became  entitled  to  and  possessed  of  all  the  rights  of  dominion  and 
sovereignty  which  belonged  to  the  original  states.  She  was 
admitted  and  could  be  admitted  only  on  the  same  footing  with 
them."^  Nevertheless,  the  Court  has  upheld  a  limitation  on 
Minnesota  by  which  that  state,  on  its  admission,  was  bound  not 
to  impose  any  tax  on  lands  belonging  to  the  United  States,  or  any 
higher  tax  on  non-resident  proprietors  than  on  residents.  The 
Court  said  in  this  instance:  "The  case  before  us  is  one  involving 
simply  an  agreement  as  to  the  property  between  a  state  and  a 
nation.  That  a  state  and  a  nation  are  competent  to  enter  into 
an  agreement  of  such  a  nature  with  one  another  has  been  affirmed 
in  past  decisions  of  this  Court,  and  that  they  have  been  frequently 
made  in  the  admission  of  new  states,  as  well  as  subsequently 
thereto,  is  a  matter  of  history."^  Nevertheless,  the  Court 
seems  inclined  to  distinguish  between  limitations  with  reference 
to  political  rights  and  obligations  and  those  relating  solely  to 
property  belonging  either  to  the  state  or  national  government.^ 

State  Constitutions 

Subject  to  the  limitations  of  the  federal  Constitution  and  to 
such  hmitations  as  may  be  imposed  at  the  time  of  admission,  the 
voters  of  each  state  may  draft  the  constitution  of  their  common- 
wealth as  they  please;  *  and  one  might  naturally  expect  to  dis- 
cover the  greatest  divergences  among  the  fundamental  laws  of 
the  different  states.  On  the  contrary,  however,  we  find  striking 
similarities,  especially  among  the  constitutions  of  any  particular 
decade. 

Classifying  the  various  state  constitutions  on  the  basis  of  their 
contrasts,  we  may  put  them  in  the  following  groups.    There  are, 

*  Escanaba  v.  Chicago,  107  U.  S.  R.,  678. 
^Steams  v.  Minnesota,  179  U.  S.  R.,  223. 
3  BoUn  V.  Nebraska,  176  U.  S.  R.,  83. 

*  It  must  be  noted  that  the  Constitution  requires  every  state  government 
to  be  "republican"  in  form. 


446  American  Government  and  Politics 

in  the  first  place,  the  older  states  whose  constitutions  bear  the 
impress  of  colonial  times.  In  this  group  we  may  place  Massa- 
chusetts, whose  fundamental  law  of  1780  has  not  been  reorganized; 
Connecticut,  with  a  constitution  that  has  not  been  subjected  to  a 
general  revision  since  its  estabHshment  in  18 18;  Rhode  Island, 
with  the  slightly  amended  constitution  of  1842;  New  Hampshire, 
with  the  old  fundamental  law  of  1792,  slightly  reconstructed  in 
1903. 

In  the  second  group  may  be  placed  the  constitutions  which  may 
be  said  to  belong  to  the  generation  just  past,  and  in  size,  form, 
and  general  content  stand  midway  between  the  New  England 
constitutions  and  those  of  the  most  recent  years:  New  York 
(1894),  Pennsylvania  (1873),  Ohio  (1851),  Indiana  (1851),  IlHnois 
(1870),  Wisconsin  (1848),  Kentucky  (1891),  Minnesota  (1857), 
Nebraska  (1875),  Missouri  (1875),  Iowa  (1857),  and  Tennessee 
(1870).  '  

In  the  third  group  may  be  placed  the  southern  states,  many 
of  which  —  Virginia  (1902),  South  Carolina  (1895),  Alabama 
(1901),  Mississippi  (1890),  and  Louisiana  (1898)  —  have  revised 
their  constitutions  within  the  last  fifteen  or  twenty  years. 

In  the  fourth  group  may  be  placed  the  newest  western  constitu- 
tions, noted  for  their  more  or  less  radical  departures  from  the 
precedents  set  by  the  older  commonwealths:  California  (1879), 
with  frequent  alterations;  Oregon  (1857),  embracing  the  impor- 
tant amendments  of  1902,  1906,  and  1908;  Oklahoma  (1907) 
and  Michigan  (1908). 

The  differences  in  the  constitutions,  however,  are  no  index  t 
the  real  differences  in  form  of  government,  for  nearly  all  of  the 
newer  and  more  bulky  fundamental  laws  provide  for  institutions 
which  have  been  set  up  in  older  states  by  legislative  enactment. 
For  example,  there  is  no  clause  in  the  constitution  of  New  York 
creating  a  pubHc  service  commission,  and  yet  New  York  has  a 
commission  with  large  powers  over  common  carriers  within  each 
of  the  two  districts  into  which  the  state  is  divided.  On  the  other 
hand,  the  constitution  of  Oklahoma  contains  several  pages  of  law 
creating  the  pubHc  service  commission  and  defining  its  powers 
and  activities.  Moreover,  in  drafting  new  constitutions,  the 
state  conventions  are  quick  to  take  advantage  of  a  comparative 
study  of  the  laws  of  other  states.  The  members  of  the  New  York 
constitutional  convention,  for  instance,  had  before  them  in  tabu- 


$ 


The  Constitutional  Basis  of  State  Government     447 

lated  form  the  provisions  of  the  constitutions  of  every  state  in 
the  Union,  grouped  according  to  subject-matter; '  and  this  handy 
compendium  of  comparative  constitutional  law  was  evidently 
examined  with  considerable  care,  as  the  debates  from  day  to  day 
revealed.^  A  study  of  the  constitution  of  Oklahoma  shows  many 
clauses  which  have  been  taken  almost  word  for  word  from  the 
constitutions  of  other  states. 

A  state  constitution  usually  falls  into  six  parts:  (i)  a  bill  of 
rights;  (2)  the  sections  providing  the  framework  of  government, 
central  and  local,  and  the  fundamental  Hmitations  of  each  branch; 
(3)  the  sections  dealing  with  state  finances;  (4)  the  clauses 
providing  for  the  control  of  economic  interests,  such  as  railways, 
,  insurance,  banking,  and  labor;  (5)  the  clauses  providing  for  edu- 
cation and  social  welfare  generally;  and  lastly  (6)  the  amend- 
ment clause. 

I.  Taking  several  of  the  state  constitutions  together,  we  find 
fthat  a  composite  view  of  the  bill  of  rights  reveals  two  somewhat 
sharply  defined  parts.^  The  older  part  contains  those  ancient 
and  honorable  limitations  on  behalf  of  private  rights  so  famous 
in  the  constitutional  history  of  England  and  the  United  States 
—  indictment  by  grand  jury;  trial  by  jury;  the  free  exercise  of 
religious  worship  without  discrimination  or  preference;  the  privi- 
lege of  the  writ  of  habeas  corpus  save  in  case  of  rebelHon,  invasion, 
or  public  danger;  prohibition  of  excessive  bail  and  fines  and  cruel 
and  unusual  punishments;  compensation  for  private  property 
when  taken  for  public  use;  the  right  of  every  citizen  to  speak 
freely,  write  and  pubUsh  his  sentiments  on  all  matters  subject  to 
responsibiHty  for  hbellous  publications;  and  the  right  peaceably  to 
assemble  and  petition  the  government  or  any  department  thereof.'* 

By  the  side  of  these  rights  of  ancient  English  origin,  we  find,  in 
many  of  the  recent  state  constitutions,  a  number  of  newer  prin- 
ciples ;  such,  for  example,  as  are  laid  down  in  the  constitution  of 
Oklahoma.  In  that  document,  prosecution  for  felony  and  mis- 
demeanor by  information  as  well  as  by  indictment  is  expressly 
sanctioned,  but  no  one  may  be  prosecuted  by  information  for 

*  So  also  in  Michigan  in  1907. 
^  See  Readings,  p.  144. 

^  Compare,  for  example,  the  bill  of  rights  of  the  Oklahoma  constitution 
with  that  of  the  New  York  constitution. 

■•  Drawn  from  Article  I  of  the  constitution  of  New  York. 


44^  American  Government  and  Politics 

felony  without  having  had  a  preliminary  hearing  before  an  exam- 
ining magistrate  or  having  waived  such  hearing.  In  county 
courts  and  courts  not  of  record  the  petty  jury  consists  of 
only  six  men;  and  in  civil  cases  and  in  criminal  cases 
involving  crimes  less  than  felony,  three-quarters  of  the  whole 
number  of  jurors  may  render  a  verdict.  In  other  cases  una- 
nimity is  required.  In  all  criminal  prosecutions  for  Hbel  the 
truth  of  the  matter  alleged  to  be  libellous  maybe  given  in  evidence 
to  the  jury,  and  if  it  appears  to  the  jury  that  the  matter  charged 
as  libellous  is  true,  or  was  written  with  a  good  motive  or  for  justi- 
fiable ends,  the  party  shall  be  aquitted  —  a  provision  in  behalf 
of  liberty  of  speech  and  press  which  is  to  be  found  in  the  consti- 
tutions of  more  conservative  states  Uke  New  York. 

While  safeguarding  private  property  by  providing  that  it 
shall  be  taken  for  private  use  only  under  very  strict  limitations 
and  for  public  use  only  when  just  compensation  is  given,  the 
Oklahoma  constitution  declares  that  "  the  right  of  the  state  to 
engage  in  any  occupation  or  business  for  pubUc  purposes  shall  not 
be  denied  nor  prohibited,  except  that  the  state  shall  not  engage 
in  agriculture  for  other  than  educational  and  scientific  purposes 
and  for  the  support  of  its  penal,  charitable,  and  educational 
institutions.  "  It  furthermore  provides  that  municipal  corpora- 
tions may  engage  in  any  business  or  enterprise  which  may  be 
carried  on  privately  under  a  franchise  from  the  municipality.  ^ 
Perpetuities  and  monopolies  are  declared  to  be  contrary  to  the 
genius  of  free  government  and  forever  prohibited. 

Corporations  are  excluded  from  several  privileges  and  immuni- 
ties secured  to  natural  persons,  for  the  framers  of  Oklahoma's 
fundamental  law  have  provided  for  unrestricted  searches  into 
the  actual  operations  of  corporations,  by  explicitly  stating  that 
their  records,  books,  and  files  shall  be  at  all  times  subject  to  the 
full  visitorial  and  inquisitorial  powers  of  the  state,  notwithstand- 
ing the  rights  secured  to  persons  and  to  citizens.  The  ancient 
rule  of  law  that  a  person  is  not  required  to  give  evidence  tending 

*  In  case  a  state  should  engage  in  business  on  such  a  large  scale  as  to  de- 
stroy the  enterprises  of  private  persons,  would  claims  for  compensation  lie 
against  it,  or  would  the  Oklahoma  courts  extend  to  the  body  politic  that  prin- 
ciple laid  down  by  the  English  courts  with  reference  to  private  corporations, 
namely,  that  damages  are  not  recoverable  for  injury  done  in  the  ordina 
course  of  competition?     See  Webb,  Industrial  Democracy  (1902),  p.  xxix 


I 


The  Constitutional  Basis  of  State  Government     449 

to  incriminate  himself  when  testifying  against  any  other  person 
or  corporation  is  abrogated,  but  his  substantial  right  is  secured 
by  the  provision  that  he  shall  not  be  prosecuted  or  subjected  to 
any  penalty  or  forfeiture  for  or  on  account  of  anything  con- 
cerning which  he  may  testify  or  produce  evidence. 

The  constitution  of  Oklahoma  furthermore  guarantees  to  its 
citizens  complete  immunity  from  martial  law  by  declaring, 
"The  privilege  of  the  writ  of  habeas  corpus  shall  never  be  sus- 
pended by  the  authorities  of  this  state."  This  subordination  of 
military  to  civil  authority  is  accompanied  by  a  positive  limita- 
tion on  the  power  of  the  judiciary  in  the  granting  of  injunctions. 
The  legislature,  it  is  declared,  shall  pass  laws  defining  contempts 
and  regulating  proceedings  and  punishments  in  case  of  contempt; 
but  every  person  accused  of  violating  or  disobeying  an  injunction 
out  of  the  presence  and  hearing  of  the  court  is  to  be  entitled  to 
trial  by  jury  to  determine  his  guilt  or  innocence,  and  in  no  case 
shall  penalty  or  punishment  be  imposed  for  contempt  until  the 
accused  has  had  an  opportunity  to  be  heard. 

In  addition  to  these  ancient  and  newer  principles  of  civil  liberty, 
there  are  to  be  found  in  several  bills  of  rights  curious  provisions 
which  belong  rather  to  the  sphere  of  poUtical  theory  than  to  con- 
stitutional law,  but  are  interesting  nevertheless.  The  constitu- 
tion of  Lousiana,  drafted  in  1898,  declares  that  "all  government 
of  right  originates  with  the  people,  is  founded  on  their  will  alone 
and  is  instituted  solely  for  the  good  of  the  whole;  its  only  legiti- 
mate end  is  to  secure  justice  to  all,  preserve  peace  and  promote 
the  interest  and  happiness  of  the  people."  According  to  the 
constitution  of  Kentucky  (1891),  "absolute  and  arbitrary  power 
over  the  lives,  liberty  and  property  of  freemen  exists  nowhere  in 
a  republic,  not  even  in  the  largest  majority.  All  men  when  they 
form  a  social  compact  are  equal;  ...  all  power  is  inherent  in 
the  people  and  all  free  governments  are  founded  on  their  author- 
ity and  instituted  for  their  peace,  safety,  happiness,  and  the  pro- 
tection of  property.  For  the  advancement  of  these  ends,  they 
have  at  all  times  an  inahenable  and  indefeasible  right  to  alter, 
reform,  or  aboUsh  their  government  in  such  manner  as  they 
may  deem  proper."  The  Massachusetts  constitution  solemnly 
announces: "  It  is  the  right  as  well  as  the  duty  of  all  men  in  society, 
publicly  and  at  stated  seasons  to  worship  the  Supreme  Being, 
the  great  creator  and  the  preserver  of  the  universe."    The  inhab- 


450  American  Government  and  Politics 

itants  of  Vermont  are  warned  by  the  eighteenth  article  of  the 
declaration  of  rights  "that  frequent  recurrence  to  fundamental 
principles  and  a  firm  adherence  to  justice,  moderation,  temperance, 
industry,  and  frugaUty  are  absolutely  necessary  to  preserve  the 
blessings  of  liberty  and  keep  government  free;  the  people  ought, 
therefore,  to  pay  particular  attention  to  these  points,  in  the  choice 
of  officers  and  representatives,  and  have  a  right  in  a  legal  way  to 
exact  a  due  and  constant  regard  to  them,  from  their  legislators 
and  magistrates,  in  making  and  executing  such  laws  as  are  nec- 
essary for  the  good  government  of  the  state."  While  guarantee- 
ing freedom  of  rehgious  worship,  the  constitution  of  Pennsylvania 
declares,  "that  no  person  who  acknowledges  the  being  of  a  God 
and  a  future  state  of  rewards  and  punishments  shall,  on  account 
of  his  rehgious  sentiments,  be  disquaUfied  to  hold  any  ofiice  or 
place  of  trust  or  profit  under  this  commonwealth." 

II.  The  second  part  of  a  state  constitution  embraces  those 
sectfons  deahng  with  the  distribution  of  powers,  the  frame  of 
government,  and  the  Hmitations  on  the  authorities  of  the  state. 
This  part  usually  outhnes  the  form  of  the  central  government  in 
considerable  detail,  and  contains  more  or  less  expHcit  provisions 
in  relation  to  rural  and  municipal  government.  It  defines  the 
suffrage,  provides  for  the  organization  of  the  legislature,  and 
prescribes  the  limitations  under  which  it  must  operate.  It 
provides  for  the  election  of  the  governor  and  the  great 
officers  of  state,  leaving  the  construction  of  the  minor  adminis- 
trative offices  and  boards  to  the  legislature;  it  creates  the 
judicial  system,  state  and  local;  but  generally  intrusts  the 
regulation  of  minor  details  with  regard  to  jurisdiction,  procedure, 
and  appeals  to  the  legislature. 

III.  The  third  division  of  ijlir_composite  state  constitution 
places  fundamental  limitations  upon  the  financial  power  of  the 
state  legislature.^  The  provisions  are  often  detailed  and  com- 
plicated, but  their  general  purpose  is  to  fix  a  debt  limit  beyond 
which  the  legislature  cannot  go,  and  to  compel  that  body  to  make 
adequate  provision  for  the  payment  of  interest  and  principal  on 
debts  created.- 

IV.  The  fourth  part  of  our  composite  state  constitution  lays 
down,  with  considerable  minuteness,  the  general  principles  which 


See  below,  chap.  xxxi.  ^Readings,  p.  460 


^ 


The  Constitutional  Basis  of  State  Government    451 

shall  be  applied  in  the  regulation  of  corporations  and  conditions 
of  labor.^  The  newer  constitutions  are  especially  full  and  explicit 
in  these  points;  they  not  only  provide  that  corporations  shall  be 
chartered  under  general  rather  than  special  laws,  but  they  go  into 
great  detail  with  regard  to  pubUc  service  corporations.  Northern 
constitutions  —  for  example,  those  of  New  York,  Pennsylvania, 
Ohio,  and  Indiana  —  dispose  of  the  matter  in  relatively  few  words; 
but  the  constitution  of  Virginia,  drafted  in  1902,  contains  twelve 
large  and  closely  printed  pages  on  the  subject  of  corporations 
alone;  while  Oklahoma  gives  fourteen  pages  of  the  same  size  to 
that  branch  of  law.-  These  newer  constitutions  Umit  very  nar- 
rowly the  activities  of  corporations.  They  provide  for  a  cor- 
poration commission  with  large  powers  iii  the  regulation  of  rates, 
charges,  and  general  conduct  of  corporate  business.  Oklahoma 
provides  for  physical  valuation  of  railways;  endeavors  to  pre- 
vent stock  watering;  fixes  a  rate  of  two  cents  a  mile  for  carrying 
passengers,  subject  to  change  by  the  legislature  and  corporation 
commission;  and  prohibits  the  consoHdation  of  competing  com- 
panies and  the  establishment  of  monopolies.  On  behalf  of  labor, 
the  Oklahoma  constitution  provides  for  a  separate  state  depart- 
ment, prohibits  the  contracting  of  convict  labor,  stipulates  an 
eight-hour  day  in  all  public  employments,  orders  the  legislature 
to  pass  laws  protecting  the  health  and  safety  of  employees  in 
factories,  mines,  and  on  railroads.' 

V.  The  fifth  part  of  our  composite  constitution  contains  a 
large  variety  of  miscellaneous  provisions  designed  to  promote 
general  welfare.  It  usually  includes  sections  relative  to  the 
pubhc  schools  and  the  state  educational  system;  the  Nebraska 
constitution,  for  example,  requires  the  legislature  to  provide  free 
instruction  in  the  common  schools  of  the  state  for  all  persons 
between  the  ages  of  five  and  twenty-five;  it  sets  aside  certain 
revenues  for  educational  purposes;  and  creates  a  board  of  regents 
for  the  state  university  and  prescribes  their  duties.  Under  these 
general  provisions  we  also  find  clauses  regulating  or  prohibiting 
the  manufacture  and  sale  of  intoxicating  liquors,  providing  for 
the  care  and  maintenance  of  the  poor,  exempting  homesteads 
from  forced  sales  for  debt  except  under  prescribed  conditions, 

^Readings,  p.  91  and  610. 

^See  Thorpe,  American  Charters,  Constitutions  and  Organic  Laws,  Vol. 
VII,  pp.  3936,  4300.  See  below,  chap,  xxxii. 


452  American  Government  and  Politics 

fixing  the  maximum  rates  of  interest,  safeguarding  public 
health,  creating  charitable  and  eleemosynary  institutions,  and 
controlling  the  care  and  management  of  pubHc  property.^ 

VI.  The  last  part  of  our  composite  constitution  makes  pro- 
vision for  future  alterations  by  prescribing  the  way  in  which 
amendments  may  be  proposed  and  adopted.^ 

The  State  Courts  and  the  Constitution 

The  constitution  of  a  state  is  its  fundamental  law,  and  stands 
very  nearly  in  the  same  relation  to  the  authorities  of  the  state 
in  which  the  federal  Constitution  stands  to  federal  authorities.' 
^  In  other  words,  it  is  the  supreme  law  of  the  commonwealth,  and 
'  the  state  courts  are  bound  to  hold  unconstitutional  the  act  of 
any  state  authority,  legislative  or  executive,  which  violates  that 
supreme  law.^  This  principle,  which  met  with  some  resistance 
in  the  beginning  of  our  history,  has  now  been  universally  accepted. 
"In  exercising  this  high  authority,"  it  has  been  said,  "the  judges 
claim  no  judicial  supremacy;  they  are  only  the  administrators 
of  pubUc  will.  If  an  act  of  the  legislature  is  held  void,  it  is  not 
because  the  judges  have  any  control  over  the  legislative  power, 
but  because  the  act  is  forbidden  by  the  constitution  and  because 
the  will  of  the  people  which  is  therein  declared  is  paramount  to 
that  of  their  representatives  expressed  in  any  law." 

In  passing  upon  the  constitutionality  of  acts  of  the  legislature, 
the  courts  of  New  York  have  laid  down  certain  principles  which 
are  quite  commonly  accepted  throughout  the  United  States.* 
The  constitution  should  be  so  construed  as  best  to  promote  the 
objects  for  which  it  was  made,  avoiding  the  two  extremes  of  a 
wide  and  a  strict  construction;  statutes  are  presumed  to  be 
constitutional;  an  act  must  be  constitutional  in  substance  as 
well  as  in  form;  the  constitutionaHty  of  statutes  is  not  to  be 
passed  upon  unless  necessary  to  the  decision  of  the  case  in  ques- 

'  Below,  chap,  xxxii.  J 

*Below,  chap,  xxiii,  and  Readings,  p.  411.  ^ 

^In   Florida,    Maine,   Massachusetts,    New    Hampshire,  Colorado,   and 

South  Dakota,  the  judges  of  the  high  court  are  required  to  give  opinions  when 

requested  by  the  governor  or  legislature,  or  both. 

*  The  state  judges  are  also  bound  to  declare  void  a  state  act  violating  the 

federal  Constitution. 

^From  the  Legislative  Manual  of  New  York  (1908),  pp.  83  ff. 


A 


The  Constitutional  Basis  of  State  Government    453 

tion;  no  statute  should  be  declared  unconstitutional  unless  it 
is  in  direct,  clear,  and  necessary  conflict  with  the  constitution; 
a  law,  unconstitutional  in  part,  may  be  enforced  as  to  its  con- 
stitutional provisions.  A  statute  evading  the  terms  and  frustrat- 
ing the  general  and  clearly  expressed  or  necessarily  implied 
purposes  of  the  constitution  is  as  certainly  void  as  if  expressly 
forbidden;  in  the  case  of  an  act  susceptible  of  vaUd  or  invaHd 
construction  courts  should  lean  to  construction  of  vaUdity; 
if  an  act  is  corruptly  administered,  this  is  no  reason  for  holding 
it  unconstitutional;  the  long  and  undisputed  practice  in  the 
construction  of  a  constitutional  provision  by  the  legislature  has 
almost  the  force  of  judicial  exposition  in  its  interpretation. 

The  Suffrage 

The  ultimate  political  power  in  every  state,  subject  to  the 
limitations  of  the  federal  Constitution,  is  vested  in  those  persons 
who  possess  the  qualifications  required  for  exercise  of  the  suf- 
frage under  the  fundamental  law  of  the  state.  These  quali- 
fications may  be  classified  into  five  groups:  age,  sex,  residence, 
citizenship,  and  miscellaneous. 

All  of  the  states  have  adopted  the  ancient  English  rule  of  fixing 
the  age  limit  at  twenty-one  years. 

Four  of  the  states,  Colorado,  Idaho,  Utah,  and  Wyoming,  have 
conferred  the  right  to  vote  at  all  elections  upon  women  as  well 
as  men.^  In  lUinois,  Kansas,  Kentucky,  Michigan,  Minnesota, 
Montana,  Nebraska,  New  Hampshire,  North  Dakota,  Oklahoma, 
Oregon,  South  Dakota,  Washington,  Wisconsin,  and  some  other 
states  women  may  vote  in  school  elections;  in  Kansas,  women 
vote  in  municipal  elections;  and  in  New  York,  women  other- 
wise quaUfied,  whenever  they  own  property  in  the  village  or 
town,  may  vote  in  village  elections  and  town  meetings  on  ques- 
tions involving  taxation. 

Undoubtedly  there  is  a  general  tendency  to  extend  the  suffrage 
to  women,  on  account  of  their  growing  demand  for  it.  They 
claim  that  they  are  as   vitally  interested   in  government  —  in 

'  A  constitutional  amendment  providing  for  woman's  suffrage  was  sub- 
mitted to  the  voters  in  Oregon  in  June,  1906.  It  was  defeated  by  a  vote  of 
47,075  to  36,902.  The  same  question  had  been  submitted  in  that  state  in 
1900,  when  it  was  defeated  by  a  vote  of  28,402  to  26,265.  In  1908,  it  was 
again  defeated  by  a  large  majority. 


454  American  Government  and  Politics 


1  la\\^| 


taxation,  sanitation,  labor  legislation,  tariff,  pure  food 
and  the  like  —  as  are  the  men/  They  also  urge  that  it  cannot  be 
a  mere  question  of  intelligence,  for  if  a  standard  of  inteUigence 
were  appHed  which  would  exclude  the  entire  female  sex,  it  would 
at  the  same  time  sadly  deplete  the  ranks  of  the  male  voters. 
Those  who  hold  that  the  domestic  occupations  of  women  would 
be  disturbed  by  the  exercise  of  the  franchise  are  met  by  the  argu- 
ment that  miUions  of  women  are  now  wage-earners  out  of  the 
home,  and  that  anyhow  voting  is  no  more  incompatible  with 
cooking  than  with  any  ordinary  masculine  occupation.  More- 
over, the  fact  is  certain  that  where  the  women  have  the  vote, 
domestic  life  is  not  harmed  in  any  way.  Finally,  those  who  claim 
that  women  really  do  not  care  for  the  vote  are  met  by  the  argu- 
ment that  where  they  are  given  the  right  they  do  manifest  a 
decided  interest  in  the  franchise.  Ex-Governor  Adams  of  Col- 
orado says  that  "in  his  own  residence  precinct  in  Pueblo,  at 
the  1902  state  election,  46  per  cent,  and  at  the  1903  municipal 
election  44  per  cent,  of  the  total  vote  was  cast  by  women."  An- 
other estimate  shows  that  the  proportion  of  the  total  vote  (1904- 
1905)  cast  by  women  in  Colorado  ranged  from  46  per  cent  at 
the  municipal  election  in  the  best  residence  precincts  to  25  per 
cent  at  the  state  election  in  an  agricultural  and  horticultural 
region  where,  as  is  well  known,  it  is  difficult  to  get  the  men  out 
to  vote.  The  figures  for  Colorado  are  undoubtedly  incom- 
plete, but  they  show  that  women  do  take  the  exercise  of  their 
political  rights  quite  seriously.^ 

The  length  of  residence  required  in  a  state  before  any  person 
is  allowed  to  vote  varies  from  three  months  in  Maine  to  two 
years  in  Alabama,  Louisiana,  Mississippi,  North  Carolina,  Rhode 
Island,  South  CaroHna,  and  Virginia.  Several  of  the  states  — 
Idaho,  Indiana,  Iowa»  Minnesota,  Nebraska,  and  Oregon,  for 
example  —  fix  the  term  at  six  months.  The  most  common  rule, 
however,  is  one  year  —  the  rule  in  force,  for  instance,  in  Arkansas, 
CaHfornia,  Colorado,  Missouri,  Ohio,  Pennsylvania,  and  New 
York. 

Nearly  all  of  the  states  require  voters  to  be  bona-fide  citizens 
of  the  United  States;   but  Alabama,  Arkansas,  Indiana,  Michigan, 

^  For  arguments  on  both  sides,  see  Readings,  p.  405. 
^  On  this  whole  matter,  see  the  careful  study  by  Miss  Helen  Sumner, 
Equal  Suffrage. 


The  Constitutional  Basis  of  State  Government     455 

Missouri,  Nebraska,  Oregon,  South  Dakota,  Texas,  and  Wis- 
consin admit  to  the  suffrage  aliens  who  have  declared  their 
intention  of  becoming  citizens.  This  practice  of  conferring 
political  rights  upon  foreigners  was  early  adopted  to  encourage 
immigration,  but  within  recent  years  it  has  met  with  serious 
protests,^  and  no  doubt  it  will  be  abandoned  in  due  time. 

Among  the  special  limitations  imposed  by  the  states  on  suffrage 
7are  tax  and  educational  tests,  and  the  peculiar  tests  appHed  in  the 
(South  to  exclude  the  negroes.^  Tax  quaHfications  are  imposed 
by  only  a  few  states.  The  constitution  of  Arkansas  requires  the 
voter  to  exliibit  a  poll  tax  receipt  or  other  evidence  that  he  has 
paid  his  poll  tax;  Tennessee  likewise  requires  the  payment  of  a 
poll  tax;  and  the  constitution  of  Pennsylvania  provides  that 
voters  of  twenty-two  years  of  age  or  upwards  must  have  paid 
within  two  years  a  state  or  county  tax,  assessed  at  least  two 
months,  and  paid  at  least  one  month,  before  election. .  In  some 
of  the  southern  states  the  tax-paying  qualification  forms  one  of 
the  alternative  qualifications  laid  on  voters. 

Almost  one-third  of  the  states  impose  some  kind  of  an  edu- 
cational test,  either  as  an  absolute  or  optional  quaUfication.^ 
Massachusetts,  for  example,  requires  the  voter  to  be  able  to  read 
the  constitution  of  the  state  in  the  EngUsh  language  and  write 
his  own  name,  if  he  is  not  prevented  by  physical  disability  or 
was  not  over  sixty  years  of  age  at  the  time  the  amendment  went 
into  effect.  Connecticut  Hkewise  prescribes  that  the  citizen 
must  be  prepared  to  read,  in  the  EngUsh  language,  any  article 

^  Readings,  p.  143. 

^  Idiots,  insane  persons,  and  criminals  are  excluded  from  the  right  to  vote. 

3  In  1906,  thirteen  States  —  Alabama,  California,  Connecticut,  Dela- 
ware, Louisiana,  Maine,  Massachusetts,  Mississippi,  New  Hampshire,  North 
Carolina,  South  Carolina,  Washington,  and  Wyoming  —  had  a  reading 
qualification.  Eight  of  these  states  added  some  sort  of  a  writing  qualifica- 
tion, some  requiring  the  voter  to  write  his  name,  while  in  others  the  voter  had 
to  write  a  portion  of  the  constitution;  one  state  required  the  voter  to  write 
out  the  application  for  registration.  In  the  southern  states,  however,  the 
force  of  the  educational  qualifications  is  generally  greatly  diminished  by 
exempting  from  them  large  classes  of  persons  by  "grandfather  clauses"  or 
by  provisions  exempting  property  owners  from  the  requirements.  Some  of 
the  other  states  exempted  persons  who  were  voters  at  the  time  of  the  adop- 
tion of  the  requirement.  Most  of  the  thirteen  states  also  exempted  persons 
who  were  physically  unable  to  read  or  write.  John  B.  Phillips,  Educational 
Qiialijications  of  Voters,  University  of  Colorado  Studies,  Vol.  Ill,  pp.  55  ff. 


456  American  Government  and  Politics 

of  the  constitution  or  any  section  of  the  statutes  of  the  state 
befpre  being  admitted  to  the  privileges  of  an  elector. 
'^n  order  to  exclude  negroes  from  the  vote  without  violating 
the  letter  of  the  federal  Constitution,  several  of  the  southern 
states  have  devised  special  qualifications  for  voters.  The  con- 
stitution of  Mississippi,  for  example,  provides  that  the  voter  must 
never  have  been  convicted  of  bribery,  burglary,  perjury,  or  anyone 
of  several  enumerated  offences ;  and  must  have  paid  all  the  taxes 
which  may  have  been  legally  required  of  him,  including  the  poll 
tax;  and  must  lie  able  to  read  any  section  of  the  constitution  of 
the  state  or  be  able  to  understand  it  when  read  to  him,  and  give 
a  reasonable  interpretation  thereof.  Negroes  often  have  great 
difficulty  in  giving  a  "  reasonable "  interpretation  to  the  satis- 
faction of  the  registration  officers. 

In  Louisiana  the  voter  must  demonstrate  his  ability  to  read 
and  write,  on  his  application  for  registration;  or  if  unable  to 
read  and  write  he  must  be  the  bona-fide  owner  of  property 
valued  at  not  less  than  $300;  provided,  however,  "that  no  male 
person  who  was  on  January  i,  1867,  or  on  any  date  prior  thereto 
entitled  to  vote  under  the  constitution  or  statutes  of  any  stale 
of  the  United  States  wherein  he  then  resided  and  no  son  or 
grandson  of  any  such  person  not  less  than  twenty-one  years  of 
age  at  the  date  of  the  adoption  of  this  constitution  and  no  male 
person  of  foreign  birth  who  was  naturalized  prior  to  the  first  day 
of  January,  1898,  shall  be  denied  the  right  to  register  and  vote 
in  this  state  by  reason  of  his  failure  to  possess  the  educational 
or  property  quaUfications  prescribed  by  this  constitution."  ^  It 
will  be  noted  that  none  of  these  provisions  requiring  an  edu- 
cational, property,  or  family  qualification  is  in  contravention 
of  the  Fifteenth  Amendment,  which  merely,  provides  that  no 
person  shall  be  disfranchised  on  account  of  race,  color,  or  previous 
condition  of  servitude.  However,  they  make  the  state  which 
imposes  them  liable  to  a  reduction  in  representation  in  Con- 
gress under  the  Fourteenth  Amendment.^ 

The  effect  of  these  southern  limitations  on  the  negro  vote  can 

^  Resident  and  similar  qualifications  are,  of  course,  required.  For  the' 
suffrage  provisions  of  the  Virginia  constitution  of  1902  excluding  negroes,  see 
Readings,  p.  402.  An  attempt  to  disfranchise  the  negroes  in  Maryland  was 
defeated  in  the  election  of  November,   1909. 

■^  See  Readings,  p.  393;   and  above,  p.  163. 


The  Constitutional  Basis  of  State  Government     457 

be  gathered  from  the  published  statistics  for  South  Carolina 
and  Mississippi/  It  appears  that  in  those  states  there  were 
350,796  adult  male  negroes  in  1900  and  that  the  total  Republican 
vote  (in  both  states)  in  the  national  election  of  that  year  was  only 
5443.  At  a  rough  guess,  perhaps  2000  of  this  number  were  cast 
by  white  men,  and  the  conclusion  must  be  that  about  ninety- 
nine  negroes  out  of  every  hundred  failed  to  vote  for  President 
in  those  states. 

Several  attempts  have  been  made  to  test  the  constitutionality 
of  these  suffrage  laws,  but  the  Supreme  Court  of  the  United  States, 
principally  on  technical  grounds,  has  been  able  to  avoid  coming 
to  a  direct  decision  on  the  merits  of  the  particular  measures.  In 
one  of  these  cases,^  the  plaintiff  alleged  that  the  Alabama  con- 
stitutional restrictions  on  the  suffrage  were  designed  to  deprive 
the  negroes  of  the  vote,  but  the  Court  answered  that  a  court  of 
equity  could  not  remedy  such  a  wrong;  that  the  court  could  not, 
through  its  officers,  take  charge  of  and  Operate  the  election  ma- 
chinery of  Alabama;  and  finally  concluded  "that  reUef  from 
a  great  pohtical  wrong,  if  done  as  alleged,  by  the  people  of  a 
state  and  by  the  state  itself,  must  be  given  by  them  or  by  the 
legislative  and  political  departments  of  the  Government  of  the 
United  States."^  — '"- 

*  Mr.  J.  C.  Rose,  in  the  Political  Science  Review,  for  November,  1906,  p.  20. 

2  Giles  V.  Harris,  189  U.  S.  R.,  474- 

'On  this  question,  see  E.  G.  Murphy,  Problems  of  the  Present  South. 


CHAPTER  XXIII 

POPULAR  CONTROL  IN  STATE  GOVERNMENTS 

More  than  half  a  century  ago  Carlyle  said  that  whoever  had 
occasion  to  write  or  speak  in  that  day  must  take  account  of  the 
fact  that  democracy  had  arrived;  and  an  eminent  English  pub- 
licist of  our  time,  Mr.  G.  Lowes  Dickinson,  has  restated  the  doc- 
trine in  a  little  more  concrete  form  when  he  says,  "  Governments 
in  every  civilized  country  are  now  moving  towards  the  ideal  of 
an  expert  administration  controlled  by  an  alert  and  intelligent 
pubHc  opinion."  The  awakening  of  this  alert  and  intelUgent 
pubUc  opinion  is  the  problem  of  education  in  its  broadest  sense; 
but  in  order  to  make  this  opinion  effective  in  controlHng  legis- 
latures and  executives  it  is  necessary  to  devise  electoral  machinery 
which  will  work  with  as  Uttle  friction  and  waste  of  public  spirit 
as  possible. 

Tke  Amending  System 

As  we  have  seen,  the  metes  and  bounds  of  state  government 
are  set  in  the  constitution,  and  to  enable  popular  will  to  alter 
this  fundamental  law  from  time  to  time,  as  new  conditions  arise, 
some  regular  legal  process  of  amendment  is  indispensable.  The 
exact  method  varies  in  character  and  operation  from  state  to 
state,  but  there  are  certain  general  principles  and  tendencies  which 
are  now  well  established. 

I.  In  the  first  place,  about  two- thirds  of  the  states  ^  provide 
for  amendment  by  a  convention  composed  of  delegates  chosen 
by  the  voters,  and  many  constitutional  lawyers  hold  that  the 
legislatures  of  the  remaining  states  can  call  conventions  under 
their  general  legislative  powers.  A  few  states,  including  New 
York,  provide  that  the  question  whether  a  constitutional  con- 

'All  except  Arkansas,  Connecticut,  Indiana,  Massachusetts,  Mississippi, 
New  Jersey,  North  Dakota,  Pennsylvania,  Rhode  Island,  Tennessee,  Texas, 
Vermont,  and  Louisiana.  See  Professor  J.  W.  Garner's  article  in  the  Ameri- 
can Political  Science  Review  for  February,  1907. 

458 


Popular  Control  in  State  Governments         459 

vention  shall  be  held  must  be  referred  to  popular  vote  at  stated 
intervals;  and  New  York  also  gives  the  legislature  the  power 
to  submit  the  proposition  to  call  a  convention  at  any  time  it 

may  see  fit.       1V[r>]-f  tVtan  nnP-V>a1f  fif  tViP  statp';^  Vinwpvpr    m^rply 

authorkfi^he  legislature  to  dpfpi-jpinp,  at  it^  Hkr^-p^j^^n,  whffn 
a__cpnstitiitional  revision  is  advifi^hlp,  submit  the  question  to 
popular  vote,  and  on  approval  make  provision  for  the  election 
of  delegates.  Most  of  these  constitutions  require  an  extraor- 
dinary majority  in  the  legislature  before  the  proposition  of  call- 
ing a  convention  can  be  submitted  to  the  electorate;  and  some 
of  them,  in  addition,  require  the  approval  of  a  majority  of  all 
those  voting  at  some  election.^  Wherever  these  two  provisions 
are  found  in  conjunction,  it  is  well-nigh  impossible  to  amend 
the  constitution. 

Very  few  of  the  state  constitutions  that  provide  for  amend- 
ment through  the  convention  system  are  explicit  as  to  the  methods 
by  which  the  delegates  shall  be  apportioned  and  elected.  In 
this  regard  the  constitution  of  New  York  is  more  satisfactory 
than  that  of  most  other  states  because  it  goes  into  greater  detail. 
It  provides  that  three  delegates  for  each  senatorial  district  and 
fifteen  delegates-at-large  shall  be  chosen  by  the  voters;  it  pre- 
scribes the  time  at  which  the  delegates  shall  convene;  fixes  the 
quorum  at  a  majority;  makes  some  provisions  as  to  procedure; 
and  concludes  with  the  requirement  that  the  constitution  or 
amendments  adopted  by  such  convention  must  be  submitted 
to  popular  ratification. 

II.  The  second  general  method  of  amendment,  to  be  found 
in  all  states  except  New  Hampshire,  including  those  which  have 
the  convention  system  as  well,  is  through  legislative  action 
ratified  by  popular  vote.  In  several  "Of  the  states,  as  widely 
separated  as  Illinois,  Kansas,  Washington,  California,  and  Missis- 
sippi, two-thirds  of  all  the  members  elected  to  both  houses  of 
the  legislature  are  required  to  initiate  an  amendment.  A  few 
states,  among  which  are  Florida  and  Ohio,  fix  the  majority  at 
three-fifths ;  while  New  York,^  Indiana,  Minnesota,  Wisconsin, 

^  Only  two  commonwealths,  Georgia  and  Maine,  authorize  the  legislature 
by  concurrence  of  two-thirds  of  both  houses  to  call  a  convention  without 
referring  the  question  to  popular  vote. 

^Readings,  p.  411.  In  1910  a  proposition  was  introduced  into  the  New 
York  legisUiture  providing  that  a  two-thirds  vote  of  both  houses  (and  a  repeti- 


460  American  Government  and  Politics 

Tennessee,  and  some  other  commonwealths  require  only  a  simple 
majority.  In  about  one-third  of  the  states,  including  Massa- 
chusetts, New  York,  South  Carolina,  Vermont,  Indiana,  and 
Oregon,  the  constitution  provides,  in  addition,  that  an  amend- 
ment proposed  by  one  legislature  must  be  approved  by  the  succeed- 
ing legislature  before  being  submitted  to  the  people.  It  is  the 
common  practice  now  to  require  an  approval  of  only  a  majority 
of  the  popular  vote  cast  on  the  proposition;  but  a  few  common- 
wealths stipulate  that  an  amendment  must  receive  a  majority 
of  all  the  votes  cast  at  some  state  election  in  order  to  become  a 
law. 

III.  The  third  mode  of  amendment,  that  of  the  initiative 
and  referendum,  is  to  be  found  in  several  states.^  For  ex- 
ample, an  amendment  to  the  constitution  of  Oregon,  ratified 
in  June,  1902,  expressly  reserves  to  the  people  the  power  to  pro- 
pose amendments  to  the  constitution  and  to  approve  or  reject 
the  same  at  the  polls  independent  of  the  legislative  assembly. 
It  provides  that  eight  per  cent  of  the  legal  voters  may  propose 
an  amendment  by  petition,  and  if  the  proposal,  on  its  submission 
to  popular  ratification,  receives  a  majority  of  all  the  votes  cast 
thereon,  it  becomes  a  part  of  the  fundamental  law  of  the  state. 
A  somewhat  similar  method  is  in  force  in  Oklahoma,  but  fifteen 
per  cent  of  the  voters  must  sign  the  petition  to  initiate  a  consti- 
tutional amendment,  whereas  only  eight  per  cent  are  required  to 
propose  any  ordinary  legislative  measure. 

tion  of  the  process)  should  be  required  to  submit  a  constitutional  amendment 
to  the  voters,  and  that  for  ratification  an  amendment  must  receive  a  majority 
vote  of  the  electors  voting  for  members  of  the  legislature.  In  support  of  the 
measure,  Mr.  Dana,  who  introduced  it,  said:  " For  some  time  past,  amend- 
ments to  the  Constitution  have  been  passed  by  a  very  small  vote  in  proportion 
to  the  total  vote  cast.  At  the  last  election  only  81,517  votes  out  of  a  total  vote 
of  318,035  in  the  City  of  New  York,  were  cast  for  the  constitutional  amend- 
ment receiving  the  greatest  number  of  votes,  while  in  the  rest  of  the  state, 
out  of  a  total  of  702,965  votes,  only  290,795  were  cast  for  the  amendment. 
This  does  not  by  any  means  express  the  will  and  desire  of  the  people.  "  The 
proposal  was  later  modified  to  the  effect  that  any  amendment  must  be 
approved  by  at  least  30  per  cent  of  the  vote  for  assemblymen. 
^  For  the  Oklahoma  system,  see  Readings,  p.  413. 


i-JM^ 


Popular  Control  in  State  Governments         461 


The  Initiative  mid  Referendum 

The  participation  of  the  people  in  the  making  of  constitutional 
law  is  not  only  on  the  increase/  but  there  is  also  a  decided 
tendency  to  extend  the  power  of  the  voters  to  ordinary  legis- 
lation as  well.  Indeed,  the  constitution  of  Oklahoma  provides 
that  the  style  of  all  bills  shall  run  "  Be  it  enacted  by  the  people 
of  the  state  of  Oklahoma." 

As  we  have  seen,  the  practice  of  even  submitting  constitutions 
to  popular  ratification  was  not  one  of  the  original  devices  of  our 
constitutional  system,  only  three  of  the  eighteenth- century 
constitutions  being  submitted  to  the  electorate  for  approval  or 
rejection.  Slowly,  however,  the  idea  came  to  be  accepted  that 
voters,  in  a  final  analysis,  had  the  right  to  pass  upon  their  own 
fundamental  laws.  The  New  York  constitution  of  182 1  was  re- 
ferred to  the  electorate,  and  it  further  provided  that  amendments 
should  Ukewise  be  submitted  to  the  voters  after  having  received 
legislative  approval.  By  the  middle  of  the  nineteenth  century 
the  doctrine  of  the  constitutional  referendum  was  fairly  fixed, 
and  most  of  the  constitutions  since  1850,  excepting  those  of 
Delaware  (1897),  Mississippi  (1890),  South  Carolina  (1895),  and 
Vir<jinia  (1902),  have  been  approved  by  popular  vote. 

The  idea  of  referring  such  matters  to  the  people  was,  however, 
not  adopted  without  a  strong  opposition,  which  was  based  on 
the  ground  that  a  convention,  duly  chosen  and  solemnly  de- 
hberating,  was  the  best  institution  for  making  fundamental  laws, 
and  that  no  further  action  was  required.  Even  as  late  as  1894, 
Mr.  Dean,  speaking  in  the  New  York  constitutional  convention, 
declared  that  the  practice  of  referring  constitutions  to  the  people 
merely  encouraged  cowardice  on  the  part  of  the  representatives 
and  enabled  them  to  shirk  their  own  responsibiHties  by  leaving 
the  power  of  making  the  final  decision  to  the  electorate.^  But 
Mr.  Dean's  protest  was  in  vain,  for  the  constitution  drafted  by 
that  body  provided  that  all  future  amendments,  whether  by 
way  of  conventions  or  legislative  enactment,  should  be  sub- 
mitted to  popular  approval. 

The  doctrine  of  popular  referendum  was  also  early  extended 

*  See  above,  p.  96. 

^Record  of  the  Constitutional  Convention  (1894),  Vol.  II,  p.  801. 


462  American  Government  and  Politics 

to  several  important  matters  besides  constitutions  and  amend- 
ments. The  courts  have  usually  held  that,  in  the  absence  of 
express  constitutional  warrant,  the  legislature  has  no  power  to 
refer  general  laws  to  the  electorate;  but  some  of  them  have 
maintained  that  it  is  proper  to  refer  to  the  people  the  question 
of  the  time  when  a  certain  law  shall  go  into  effect.  Under  the 
cover  of  this  legal  theory  several  state  prohibition  laws  have 
been  referred  to  popular  approval.  The  legislature  of  New  York, 
in  1849,  submitted  the  proposition  of  estabhshing  free  schools 
to  the  decision  of  the  electors;  and  the  question  of  woman  suf- 
frage was  laid  before  the  voters  of  Massachusetts  in  1895.  It 
is  likewise  common  to  require  the  reference  of  special  financial 
measures  to  popular  approval;  for  example,  the  constitution  of 
New  York  fixes  a  certain  debt  Umit,  beyond  which  the  legislature 
cannot  go  without  receiving  the  approval  of  a  majority  of  the 
electors  voting  on  the  proposition.  The  practice  of  referring 
local  laws  of  a  special  character,  such  as  those  selecting  county 
seats  and  changing  county  or  city  boundaries,  was  also  adopted 
early  in  our  history. 

It  was  not  such  a  long  step,  therefore,  from  these  and  similar 
practices,  to  the  adoption  of  a  complete  system  of  initiative  and 
referendum,  whereby  the  voters  may  initiate  any  measure  or 
require  the  referendum  on  any  legislative  act.  Many  causes 
are  responsible  for  this  extension  of  older  practices.  In  some 
instances,  legislators  were  only  too  glad  to  shirk  their  responsi- 
bilities by  leaving  certain  questions  to  the  decision  of  popular 
vote.  The  practice  of  enlarging  the  state  constitutions  so  as  to 
include  provisions  of  a  temporary  and  statutory,  rather  than  a 
fundamental,  character  led  to  the  breaking  down  of  the  old 
distinction  between  the  solemn  formulation  of  constitutional 
law  and  the  enactment  of  mere  statutes.  Perhaps  the  most 
important  reason,  however,  was  a  distrust  in  the  legislature  ^  — 
a  distrust  that  filled  our  state  constitutions  with  long  and  de- 
tailed hraitations  on  the  powers  of  legislatures  and  finally  ended, 
in  several  states,  in  the  assumption  of  ultimate  legislative  au^i^ 
thority  by  the  voters.  ^| 

It  was  under  these  circumstances  that  the  initiative  and  ref- 
erendum were  adopted  as  remedies  for  our  legislative  evils. 
The  system  is  a  simple  one.^    The  initiative  js_  a  device  wherehv 

^Readings,  pp.  478,  483..  "^Readings,  p.  413 


1 


Popular.  Control  in  State  Governments         463 

any  person  or  group,  of  persnns  ma v-^raft  -a,  statntp,  anrLx^ru 
■y^fLiriPg,  ^^'^■■gigl'-^^:^^^'^^  "^  ^  small  percentage  of  the  voters. jna^ 
compel  the  state  officialSf  with  or  without  the  intervention  of 
the  leg^islature^  td  submit  the  same  to  popular  votft;  and  if  the 
required  P)opular  approval  is  secured,  the  proposal  becomes  a 
law.  The  referendum  is  a  plan  whQrel;)y  g.  small  percentage  of 
the  voters  may  demand  that  any  statute  passed  by  thejegjs- 
lature  (with  the  exception  of  certain  laws) "must  be  submitted 
to  the  electorate  and  flpprnved  by  a.  stipulated  mfljority  h^fnrp 
going  into   effect. 

Not  less  than  nine  states,  including  South  Dakota,  Oregon, 
Idaho,  Delaware,  Missouri,  Montana,  Utah,  Maine,  and  Okla- 
homa, have  estabUshed  the  initiative  and  referendum  in  one  form 
or  another.^  It  is  only  in  Oregon,  however,  that  it  may  be  said 
to  have  received  anything  like  a  fair  test;  and  that  state  has  also 
worked  out  the  most  complete  scheme,  including  a  plan  for  educat- 
ing the  voters  on  measures  referred  to  them.  The  system  was 
established  in  Oregon  by  a  constitutional  amendment  approved 
in  June,  1902.  This  amendment  provided  that  any  legislative^ 
measure  might  be  initiated  by  a  petition  bearing  the  signatures  of 
eight  per  cent  of  the  voters  and  containing  the  proposed  measure 
in  full.  The  petition  must  be  filed  with  the  secretary  of  state 
not  less  than  four  months  before  election  day;  it  is  mandatory 
upon  him  to  submit  it  to  popular  vote,  and  if  the  proposal  is 
approved  by  a  majority  of  all  the  electors  voting  on  it,  it  becomes 
a  part  of  the  statutory  law  of  Oregon.  Any  act  ^  passed  by  the 
legislature  must  likewise  be  referred  to  the  electorate  if  five  per 
cent  of  the  voters  file  a  petition  within  ninety  days  after  the 
adjournment  of  the  legislature,  demanding  such  a  referendum. 

The  plan  has  been  tried  in  several  instances  in  Oregon.  In 
1904,  local  option  and  direct  primary  laws  were  adopted  by 
popular  vote  on  petitions  duly  initiated.  Two  years  later  acts 
laying  a  gross  earnings  tax  upon  certain  carriers,  and  prohibiting 
free  passes  and  discriminations  by  public  service  corporations, 
were  adopted,  and  a  proposition  to  amend  the  constitution  so 
as  to  establish  woman's  suffrage  was  defeated.  * 

*  Political  Science  Quarterly,  December,  1908. 

2  See  above,  p.  460,  as  to  constitutional  measures. 

'  Except  emergency  laws  relative  to  public  peace,  health,  or  safety. 

^  See  American  Political  Science  Review,  November,  1908,  p.  601. 


464  American  Government  and  Politics 

The  most  noteworthy  feature  of  the  Oregon  system  is,  however, 
the  recent  statute  providing  for  the  pubHcation  and  distribution 
of  arguments  for  and  against  the  propositions  submitted  to  the 
decision  of  the  voters.  Under  this  law  the  supporters  and  op- 
ponents of  any  particular  measure  may  prepare  their  arguments 
at  length;  these  arguments  are  printed  by  the  state  (at  the 
expense  of  the  private  parties  concerned),  together  with  the 
measures  to  be  referred  to  the  voters;  and  a  copy  is  sent  to  every 
voter  in  the  commonwealth.^  It  is  contended  by  the  friends  of 
this  system  that  it  has  an  immense  educational  value  in  arousing 
the  interest  of  the  people;  in  securing  the  consideration  of  each 
measure  on  its  merits;  and  in  turning  the  searchlight  of  pubUcity 
and  discussion  upon  all  the  important  poHtical  issues  in  the  state. 
In  1908,  the  measures  referred  to  the  voters  and  the  arguments 
favoring  and  opposing  certain  of  them  constituted  a  booklet 
of  124  pages,  a  copy  of  which  was  sent  by  the  secretary  of  state 
to  every  voter.  The  arguments  are  kept  within  a  reasonable 
compass  by  the  provision  that  whoever  prepares  them  must  pay 
for  their  publication  at  a  regular  rate.  On  the  question  of  women's 
suffrage,  which  was  submitted  to  popular  vote  and  defeated, 
there  were  four  pages  of  favorable  argument  signed  by  twelve 
women  representing  the  Oregon  Equal  Suffrage  Association, 
while  the  negative  side  of  the  case  was  presented  in  two  pages 
prepared  by  the  Oregon  Society  Opposed  to  the  Extension  of 
the  Suffrage  to  Women.^ 

A  modified  form  of  the  initiative  was  estabUshed  in  Illinois, 
in  1 90 1,  by  a  law  creating  what  is  known  as  the  "PubHc  Opinion 
System."  ^  Under  this  law  twenty-five  per  cent  of  the  regis- 
tered voters  of  any  incorporated  town,  village,  city,  township, 
county  or  school  district  may  compel  the  submission  of  any  local 
question  to  popular  vote;  and  ten  per  cent  of  the  registered  voters 
of  the  state  may  secure  the  submission  of  a  proposition  to  the 
electorate  of  the  entire  commonwealth.  The  petition  for  taking 
pubHc  opinion  on  a  question  must  be  filed  not  less  than  sixty 
days  before  the  day  of  the  election  at  which  it  is  to  be  submitted. 
If  the  voters  approve  a  proposition   referred  to   them,   it   is 

^See  Readings,  p.  415,  for  an  extract  from  this  remarkable  statute. 
^  See  interesting  article  on  this  system  by  Professor   George  H.  Haynes  in 
the  Political  Science  Quarterly,  Vol.  XXII,  p.  484. 

'For  the  proposed  Massachusetts  law,  Readings,  p.  418. 


Popular  Control  in  State  Governments         465 

understood  that  public  opinion  demands  its  enactment  into 
law;  but  as  the  members  of  the  legislature  are  not  pledged  to 
obey  the  wishes  of  their  constituents,  this  expression  of  public 
opinion  is  regarded  as  merely  advisory  and,  therefore,  of  sHght 
importance. 

The  system  of  initiative  and  referendum  is  being  extended  to 
local  as  well  as  to  state-wide  matters.^  The  constitution  of 
Oklahoma  provides  that  the  powers  of  the  initiative  and  ref- 
erendum, reserved  to  the  people  for  the  state  at  large,  are  also 
reserved  to  the  voters  of  every  county  and  district  therein  as  to 
all  local  legislative  or  administrative  actions  in  their  respective 
counties  and  districts.  A  Nebraska  law  of  1897  provides  that  an 
ordinance  or  any  other  measure  may  be  proposed  in  counties, 
cities,  and  other  local  divisions  by  a  petition  signed  by  fifteen  per 
cent  of  the  voters  and  given  the  efifect  of  law  by  the  approval  of  a 
majority.  The  same  statute  authorizes  local  government  bodies 
voluntarily  to  submit  propositions  to  popular  ratification,  and 
requires  them  to  refer  any  measure  to  popular  vote  if  it  is  de- 
manded by  a  petition  bearing  the  signatures  of  fifteen  per  cent 
of  the  electors.  According  to  an  Indiana  statute  of  1899,  the 
referendum  may  be  demanded  by  forty  per  cent  of  the  voters  in 
an  incorporated  town  within  thirty  days  after  the  passage  of  any 
ordinance  to  purchase  water  or  light  plants  or  grant  franchises; 
and  if  any  such  proposition  is  rejected  on  the  referendum,  no 
similar  ordinance  can  be  enacted  within  three  years.  The 
various  local  option  laws  permitting  the  voters  of  counties  and 
other  units  of  local  government  to  pass  upon  the  question  of  X^t^t 
licensing  saloons  may  likewise  be  regarded  as  a  part  of  tKe  general 
scheme  of  initiative  and  referendum. 

The  advocates  of  this  new  form  of  government  have  carried 
their  agitation  to  Washington,  as  well  as  to  the  capital  of  nearly 
every  state  in  the  Union,  and  in  1907  it  was  stated  on  good 
authority  that  no  less  than  no  members  of  the  House  of  Repre- 
sentatives were  at  that  time  pledged  to  vote  for  the  adoption 
of  the  referendum  for  acts  of  Congress  or  bills  passed  by  either 
house,  and  for  the  establishment  of  the  initiative  for  certain 
topics,  including  popular  election  of  United  States  Senators,  parcels 
post,  immigration,  and  the  regulation  of  interstate  commerce.^ 

*  For  cities,  sec  below,  p.  597. 

*  American  Political  Science  Review,  Vol.  II,  p.  39. 

2H 


466  American  Government  and  Politics 


d^l 


About  the  same  time,  an  advisory  system  of  initiative  and 
erendum  (similar  to  the  one  in  Illinois)  was  defeated  in  Massa- 
chusetts by  the  refusal  of  several  members  of  the  legislature  to 
carry  out  their  pledges  to  their  constituents;  and  Governor  John- 
son, in  his  message  to  the  Minnesota  legislature,  commended  the 
system,  and  stated  that  he  was  firmly  of  the  opinion  that  its 
adoption  was  desirable. 

It  is  not  at  all  surprising  that  a  system  which  proposes  to 
vest  the  legislative  power  in  the  mass  of  voters,  rather  than  in 
the  representative  branch  of  the  state  government,  and  which 
has  already  been  adopted  in  so  many  states,  should  awaken 
considerable  opposition  and  criticism.  It  is  contended  by  the 
opponents  of  the  initiative  and  referendum  that  legislation,  being 
a  difficult  and  technical  matter  demanding  the  attention  of  ex- 
perts and  careful  deliberation,  cannot  be  done  effectively  by 
the  mere  counting  of  heads.  Long  ago  Austin  said  that  "what 
is  commonly  called  the  technical  part  of  legislation  is  incomparably 
more  difficult  than  what  may  be  called  the  ethical.  In  other 
words,  it  is  far  easier  to  conceive  justly  what  would  be  useful 
law  than  so  to  construct  that  same  law  that  it  may  accomplish 
the  design  of  the  lawgiver."  This  technical  difficulty  is  illus- 
trated by  the  anecdote,  related  by  Mr.  J.  B.  Sanborn,  of  a  mem- 
ber of  a  legislature  who  once  said  to  him,  "When  I  came  to  the 
legislature  I  introduced  a  bill  to  prohibit  the  manufacture  of 
filled  cheese.  It  would  have  done  it  all  right,  but  it  would  have 
prevented  the  manufacture  of  all  other  kinds  of  cheese,  too." 
A  practical  example  of  the  failure  of  the  initiative  and  referendum 
to  secure  due  consideration  of  the  technical  difficulties  in  law- 
making is  afforded  by  the  anti-pass  law,  submitted  in  Oregon  on 
an  initiative  petition  in  1906,  which  was  so  badly  worded  that, 
construed  literally,  it  prohibited  a  railroad  company  from  giv- 
ing passes  to  its  own  employees  and  allowed  it  to  issue  passes 
to  the  employees  of  other  roads.  It  finally  failed  to  become  a 
law  in  spite  of  the  57,281  votes  for  and  16,799  against,  because 
the  petitioners  had  neglected  to  insert  an  enacting  clause. 

To  this  contention  that  popular  law-making  does  not  secure 
proper  deliberation  and  technical  service,  the  champions  of  the 
initiative  and  referendum  reply  that  even  in  our  legislatures  there 
is  very  little,  if  any,  real  searching  debate  and  criticism  on  legis- 
lative measures,  while  expert  technical  service    is    practically 


Popular  Control  in  State  Governments         467 

lacking  except  for  bills  desired  by  corporations  which  are  willing 
to  furnish  their  own  expert  service.  They  also  cite  innumeralDle 
instances  of  important  laws  poorly  prepared,  badly  worded, 
and  sadly  deficient  in  technique,  which  have  been  passed  after 
long  discussion  in  representative  bodies.  The  criticism  that 
discussion  and  dehberation  are  requisite  in  law-making  does 
not,  of  course,  apply  with  the  same  force  to  the  referendum 
(which  merely  secures  the  reference  of  a  measure  duly  passed 
by  the  legislature)  as  it  does  to  the  initiative,  in  which  case  the 
proposal  is  drafted  by  the  private  parties  who  demand  its  sub- 
mission to  the  electorate. 

The  recognition  of  the  necessity  for  discussion  and  technical 
work  in  wise  legislation  led  to  the  adoption  of  a  modified  scheme 
in  Maine,  according  to  which  the  legislature  may  reject  any  meas- 
ure proposed  by  the  initiative,  enact  a  competing  measure  of  its 
own,  and  submit  both  to  popular  approval,  permitting  the  voters 
to  choose  between  them.  "This  device,"  says  Mr.  Sanborn, 
"enables  the  legislature  to  correct  faults  in  the  proposed  legis- 
lation. The  substitute  law  will  undoubtedly  be  far  superior  to 
the  initiative  bill.  The  existence  of  the  two  bills  will,  however, 
complicate  greatly  the  work  of  the  people.  Voting  upon  a  single 
bill  is  difficult  enough;  the  choosing  between  competing  bills  may 
be  much  more  difficult."  ^ 

The  second  leading  argument  against  the  initiative  and  referen- 
dum is  the  frequent  lack  of  interest  shown  in  propositions  sub- 
mitted to  popular  vote.^  Mr.  Philip  L.  Allen,  in  a  recent  article, 
gave  the  statistics  of  the  popular  vote  upon  seventeen  different 
laws  and  constitutional  amendments  and  compared  that  vote  with 
the  simultaneous  vote  for  pubhc  officers;  the  vote  cast  in  eight 
of  the  seventeen  cases  was  less  than  fifty  per  cent  of  the  vote  cast 
for  the  officers  and  in  only  six  cases  did  it  exceed  sixty  per  cent. 
On  an  amendment  to  the  constitution  of  Illinois,  in  1896,  only 
about  one-fifth  of  the  voters  for  presidential  electors  expressed 
any  preference;  while  only  about  the  same  proportion  of  voters, 
acted  on  a  proposed  amendment  to  the  constitution  of  Kansas  in 
1906.  The  most  notorious  instance,  perhaps,  is  that  of  the. 
Louisiana  election  of  the  same  year,  in  which  a  number  of  im- 
portant constitutional  amendments  were  carried  into  effect  by 

'  The  Political  Science  Quarterly  for  December,  1908,  p.  601. 
^  See  Readings,  p.  429. 


468  American  Government  and  Politics 

a, vote  of  only  one-sixth  of  the  electors.^  It  is  clear  that,  if  a 
majority  of  all  the  voters  is  required  for  the  approval  of  a  meas- 
ure, it  will  be  defeated,  unless  it  is  of  such  a  character  as  to  arouse 
an  extraordinary  interest  among  the  people.  Oregon  appears  to 
be  the  only  state  in  which  the  voters  at  large  seem  to  take  a  deep 
interest  in  poUtical  measures.  The  vote  on  proposals  referred  to 
the  electors  of  that  state  in  1906  varied  from  63,749  to  83,899, 
while  the  vote  for  governor  in  that  year  was  96,715. 

Of  course,  it  must  be  pointed  out  that  the  vote  for  public  offi- 
cers can  hardly  be  deemed  a  correct  measure  of  public  interest  in 
elections,  owing  to  the  intense  activity  of  party  organizations  in 
getting  out  the  voters;  and  as  Mr.  Sanborn  puts  it,  "If  those  who 
vote  [on  referenda]  are  the  most  intelligent,  if  they  express 
the  best  public  opinion,  if  the  influence  of  the  uneducated  and  the 
corrupt  is  substantially  eliminated,  and  if  those  who  vote  upon 
the  question  vote  with  intelligence,  we  may  still,  in  spite  of  the 
smallness  of  the  vote,  have  conditions  under  which  the  referendum 
maybe  considered  as  an  efficient  aid  to  the  work  of  the  legislature." 
To  this  contention  the  advocates  of  the  initiative  and  referendum 
add  that  the  slight  interest  of  the  voters  in  important  legislative 
measures  is  evidence  of  the  sad  need  for  poHtical  education,  which 
their  system  promises  to  give  in  time,  if  properly  devised. 

At  its  best,  however,  legislation  by  minorities  presents  grave 
difficulties.  It  is  very  easy  to  secure  the  signatures  of  the  small 
percentage  of  voters  required  to  initiate  a  measure,  whether  it  be 
one  of  great  public  significance  or  a  proposal  designed  to  advance 
the  views  or  interests  of  a  petty  and  ambitious  faction.  The 
proposal  may  be  so  worded  as  not  to  awaken  any  general  recogni- 
tion of  its  true  importance,  and  under  the  cover  of  the  provision 
that  a  mere  majority  of  those  voting  upon  a  measure  can  carry 
it  into  effect,  a  small  faction  or  active  group  may  secure  the  pas- 
sage of  a  law  which  does  not  represent  even  the  interest  of  any  con- 
siderable portion  of  the  population,  or  is  wholly  unadapted  to 
the  actual  social  conditions  to  which  it  is  intended  to  be  applied. 

Indeed,  the  third  argument  advanced  against  the  referendum  is 
based  on  the  ground  that  it  is  very  easy  for  any  pernicious  interest 
in  the  state,  affected  adversely  by  a  good  law,  to  secure  signatures 
to  a  petition  demanding  a  referendum  and  thus  postpone  the  date 

^  Article  by  Professor  J.  W.  Gamer,  Proceedings  of  the  American  Political 
Science  Association,  1907,  p.  164. 


Popular  Control  in  State  Governments         469 

of  the  law's  going  into  effect  for  a  considerable  period  —  at  least 
until  a  popular  vote  could  be  taken  —  and,  perhaps,  through  the 
indifference  of  the  majority  defeat  it  with  a  solid  and  active 
minority.  Mr.  Sanborn,  in  the  article  cited,  contends  that  the 
recent  experience  of  South  Dakota  illustrates  this  objection, 
because  the  three  measures  passed  by  the  state  legislature  in  1907, 
on  which  referenda  were  demanded,  were  the  acts  extending  the 
period  of  residence  necessary  to  securing  a  divorce,  prohibiting  the 
shooting  of  quail  for  a  long  term  of  years,  and  forbidding  theatri- 
cals, circuses,  and  similar  public  exhibitions  on  Sunday. 

Another  argument  against  the  initiative  and  referendum  is  the 
contention  that  responsibility  for  law-making  is  shifted  from  a 
definite  group,  known  as  the  legislature,  to  a  large  and  irrespon- 
sible group  of  persons  who  mark  their  ballots  within  the  secrecy 
of  the  polling  place.  If  the  legislature  makes  mistakes  or  fails  to 
reflect  popular  will,  its  members  can  be  punished,  if  the  electors 
are  interested  enough  to  defeat  those  who  seek  reelection; 
whereas  it  is  impossible  to  fix  any  responsibihty  or  to  punish  any 
one  politically,  if  a  badly  drawn  or  unwise  measure  is  passed  by  a 
popular  vote. 

It  may  be  said,  however,  that  so  far  the  system  of  initiative  and 
referendum  has  not  seriously  affected  the  representative  element 
in  government  wherever  adopted.  The  fear  of  the  referendum 
may  have  driven  lobbyists  from  some  state  capitals,  but  it  may 
be  questioned  whether  any  important  laws  have  been  secured 
that  could  not  have  been  obtained  through  ordinary  legislative 
channels.  There  can  be  no  doubt  that  representative  govern- 
ment, where  wisely  and  efficiently  operated,  is  the  best  form  of 
government  yet  devised.  Nevertheless,  the  initiative  and  refer- 
endum, especially  for  important  matters,  have  undoubtedly  found 
a  permanent  place  among  our  institutions. 

Popular  Control  through  the  Ballot  ^ 

Under  ordinary  circumstances,  public  control  over  the  govern- 
ment is  rjjanifested  in  the  nomination  and  election  of  executive 
and  legislative  officials  —  not  in  making  constitutional  amend- 
ments or  operating  a  system  of  initiative  and  referendum.  The 
instrument  of  control  possessed  by  the  average  voter,  therefore, 

'  Taken  from  my  article,  "The  Ballot's  Burden,"  in  the  Political  Science 
Quarterly  for  December,  1909. 


470  American  Government  and  Politics 

is  his  ballot  —  a  fact  much  neglected  in  our  poHtical  literature. 
Those  who  are  active  in  party  organizations  may,  of  course,  bring 
pressure  to  bear  on  certain  public  functionaries  in  proportion 
to  their  ''influence";  but  in  most  instances  the  penalties  of  being 
active  in  poUtics  are  too  severe  for  the  man  who  has  ho  talent 
in  devising  summer  outings,  winter  festivals,  huckleberry-pie 
contests  and  other  diversions  for  keeping  his  "fellow-citizens" 
in  good  humor  with  the  organization.^  An  excess  of  this  kind  of 
"practical  politics"  constitutes,  moreover,  a  danger  to  Uberty 
and,  by  lowering  the  standard  of  political  intelUgence  and  pubHc 
interest,  tends  to  make  a  genuine  democracy  impossible.  Ac- 
cordingly, the  great  question  of  popular  control  is  not  how  best 
to  keep  the  rank  and  file  under  party  discipline,  but  how  to  make 
it  possible  for  the  voter  with  his  ballot  in  hand  on  election  day 
to  become  a  real  factor  in  determining  the  character  of  our 
government. 

Nowhere  has  the  "sovereign  voter"  received  more  adulation 
than  in  the  United  States,  and  nowhere  has  the  power  of  sov- 
ereignty been  more  frittered  away  in  futile  agitations  and  the 
collateral  incidents  of  practical  poKtics.  We  have  rightly  felt 
that  there  was  something  gratifying  and  inspiring  in  the  spec- 
tacle of  the  common  people  rising  to  the  height  of  self-govern- 
ment; and  we  have  paid  wordy  tribute  to  the  power  of  the 
ballot;  but  we  have  made  Httle  effort  to  ascertain  what  the 
ballot  can  really  do.  We  have  apparently  assumed  that  it  can 
do  everything,  from  deciding  who  among  ten  thousand  should 
be  clerk  of  a  municipal  court  to  prescribing  what  should  be  done 
with  the  surface  dirt  removed  from  a  street  by  a  public  contrac- 
tor. For  more  than  a  century  we  have  been  adding  burdens 
to  the  ballot,  until  the  outcome  of  the  tendency  is  the  paralysis 
of  the  very  control  which  popular  election  is  supposed  to  afford. 

The  theory  underlying  the  doctrine  that  public  control  can 
best  be  secured  by  establishing  as  many  elective  offices  as  possible 
i»  simple  enough.  A  number  of  men  are  candidates  for  a  pubHc 
office.  Each  of  these  candidates  entertains  certain  notions  of 
policy  with  regard  to  the  office  he  is  seeking,  and  each  of  them 
has  his  own  standards  of  efficiency  and  integrity.  The  voters 
select  the  one  who  most  accurately  reflects  the  prevaiUng  public 
sentiment  and  seems  most  Ukely  to  reaUze  the  dominant  pubUc 
^  Readings,  p.  582. 


Popular  Control  in  State  Governments         471 

desire.  If  he  does  not  carry  out  the  poHcy  which  he  is  expected 
to  support,  or  fails  to  come  up  to  the  standards  set  by  his  constitu- 
ents, he  is  turned  out  at  the  expiration  of  his  term  (which  ought 
theoretically  to  be  a  short  one  in  order  to  give  the  people  a  chance 
to  express  their  judgment  on  the  officer  with  great  frequency), 
and  some  one  who  more  nearly  represents  the  electorate  is  chosen 
in  his  stead.  Thus  in  the  long  run  representative  democracy 
triumphs  and  popular  control  is  maintained.  To  question  the 
essential  soundness  of  this  view  is  deemed  petty  treason  by  most 
politicians,  and  the  doubter  is  met  with  the  firm  assertion  that  the 
people  may  be  trusted  to  elect  any  officer,  local,  state,  or  national 
—  an  assertion  which  quite  overlooks  the  fundamental  fact  that 
electing  all  of  them  together  is  an  entirely  different  matter  from 
electing  any  one  of  them. 

The  way  in  which  the  multiplicity  of  elective  offices  has  over- 
burdened the  voter  until  his  control  has  broken  down  can  best 
be  illustrated  by  concrete  examples,  which  bring  home  the  details 
of  the  voters'  task.  Take,  for  example,  the  ballot  for  the  thirteenth 
and  thirty-fourth  wards  of  the  sixth  congressional  district  of 
Chicago  in  1906.^  It  is  two  feet  and  two  inches  by  eighteen  and 
one-half  inches;  and  it  contains  334  names  distributed  with  more 
or  less  evenness  as  candidates  for  the  following  offices:  — 

State  treasurer,  state  superintendent  of  public  instruction,  trustees 
of  the  University  of  Illinois,  representatives  in  Congress,  state  senator, 
representatives  in  the  state  assembly,  sheriff,  county  treasurer,  county 
clerk,  clerk  of  the  probate  court,  clerk  of  the  criminal  court,  clerk  of 
the  circuit  court,  county  superintendent  of  schools,  judge  of  the  county 
court,  judge  of  the  probate  court,  members  of  the  board  of  assessors, 
member  of  the  board  of  review,  president  of  the  board  of  county  com- 
missioners, county  commissioners  (ten  to  be  elected  on  general  ticket), 
trustees  of  the  sanitary  district  of  Chicago  (three  to  be  elected),  clerk 
of  the  municipal  court,  bailiff  of  the  municipal  court,  chief  justice  of 
the  municipal  court,  judges  of  the  municipal  court  (nine  to  be  elected), 
judges  of  the  municipal  court  for  the  four-year  term  (nine  to  be  elected), 
judges  of  the  municipal  court  for  the  two-year  term  (nine  to  be 
elected). 

In  Sioux  City,  Iowa,  the  following  nine  elections  were  held  in 
1908: — 

*  Kindly  furnished  to  the  author  by  Professor  J.  W.  Gamer  of  the  Univer- 
sity of  Illinois. 


472  American  Government  and  Politics 

January  21.  Special  election  on  the  commission  plan  of  gevern- 
ment. 

February  24.  City  primary.  Regular  biennial  election.  Can- 
didates nominated  for  eighteen  city  offices. 

March  9.  School  election.  Regular  annual.  Two  directors  and  a 
school  treasurer  elected.  A  tax  proposition  to  appropriate  $60,000 
for  a  schoolhouse  fund  also  voted  on. 

March  30.  City  election.  Regular  biennial.  Eight  officers  and  a 
council  of  ten  elected,  each  voter  voting  for  eleven  candidates. 

May  28.  Special  election  on  traction  franchise.  Franchise  de- 
feated. 

June  2.  Regular  biennial  election.  Candidates  nominated  for 
twenty-eight  different  national,  state,  and  local  offices. 

August  II.     Second  special  election  on  traction  franchise. 

November  3.  General  election.  Regular.  Forty- three  officials 
voted  for,  including  thirteen  presidential  electors,  twelve  state  officers, 
one  congressman,  one  state  senator,  two  state  representatives,  nine 
county  and  five  township  officers.  Amendment  to  state  constitution 
also  voted  on. 

November  17.  Special  election  on  the  Perry  Creek  and  the  Bacon 
Creek  conduit  and  the  gas  franchise.^ 

Surely  the  people  of  the  United  States  believe,  with  the  inhabit- 
ants of  Lilliput,  "that  the  common  size  of  human  understand- 
ings is  fitted  to  some  station  or  other,  and  that  Providence 
never  intended  to  make  the  management  of  public  affairs  a 
mystery." 

Public  control  must  go  behind  the  elections  to  the  primaries,  for, 
as  everybody  knows,  whoever  controls  the  primaries  controls  the 
strategic  point  in  our  whole  election  system.  Nevertheless,  we  find 
that  the  primaries,  whether  under  the  convention  or  direct  nomina- 
tion systems,  are,  if  possible,  more  complicated  than  the  election 
machinery.  If  all  of  the  voters,  moved  by  the  appeals  of  the  good 
government  people  and  stung  by  the  taunts  of  the  bosses,  were  to 
appear  at  the  primaries  of  their  parties,  they  would  not  be  able  to 
change  the  actual  operation  of  the  nomination  system;  for  the 
preliminary  work  of  the  nominations,  owing  to  the  intricacies  of 
the  process,  must  be  done  by  the  experts  —  a  fact  too  often  over- 
looked by  those  who  advocate  direct  nominations  as  a  cure  for 
boss  rule.     Within  the  cycle  of  four  years,  every  party  voter  in 

'  Digested  from  an  excellent  statement  by  F.  H.  Garver  in  the  Political 
Science  Review,  August,  1909. 


Popular  Control  in  State  Governments         473 

every  election  district  in  New  York  City,  with  minor  variations, 
must  vote  from  one  to  four  times  for  the  following  party  candi- 
dates:— 

(i)  Members  of  the  city  committee;  (2)  members  of  the  county 
committee;  (3)  members  of  the  assembly  district  committee;  (4)  dele- 
gates to  an  aldermanic  district  convention;  (5)  delegates  to  a  munici- 
pal court  district  convention:  (6)  delegates  to  a  borough  convention; 
(7)  delegates  to  a  city  convention;  (8)  delegates  to  a  county  convention ; 
(9)  delegates  to  a  judicial  district  convention;  (10)  delegates  to  an 
assembly  district  convention;  (11)  delegates  to  a  senatorial  district 
convention;  (12)  delegates  to  a  congressional  district  convention; 
(13)  delegates  to  an  assembly  district  convention.' 

yThe  best  way  to  demonstrate  the  colossal  task  set  before  the 
bewildered  New  York  voter  is  to  describe  an  actual  primary 
ballot  —  the  Democratic  ballot  for  the  thirty-second  assembly 
district.  It  is  eight  and  one-half  inches  by  two  feet  four  inches. 
It  contains  the  names  of  835  candidates:  417  for  members  of  the 
county  general  committee,  104  for  delegates  to  the  county  con- 
vention, 40  for  delegates  to  the  first  district  municipal  court 
convention,  65  for  delegates  to  the  second  district  municipal 
court  convention,  104  for  delegates  to  the  thirty-second  assembly 
district  convention,  and  105  for  delegates  to  the  thirty-fourth, 
thirty-fifth,  and  thirty-sixth  aldermanic  district  conventions. 
In  this  ticket  the  hand  of  the  expert  is  obvious,  for  the  name  of  the 
assembly  district  leader  appears  at  the  top  of  each  list  of  delegates. 
It  is  a  slate  which  the  voter  "plumps"  for  one  man,  the  assembly 
district  leader,  who  does  the  rest.  The  834  other  names  are  en- 
tirely useless  for  poHtical  purposes;  although  the  individuals  who 
bear  them  may  have  their  pride  gratified,  and  the  organization 
may  derive  a  levy  from  each.  Very  undemocratic,  but  thoroughly 
typical,  is  the  fact  that  the  name  of  the  one  man  who  really  counts 
is  set  in  larger  "display"  type. 

It  is  not  merely  capacity  to  discriminate  between  a  few  hun- 
dred candidates  that  we  expect  from  our  sovereign  voter;  he 
must  now  do  our  legislation  for  us,  down  to  the  minutest  de- 
tail. An  excellent  example  of  this  relatively  new  burden  is 
afforded  by  the  blanket  ballot  submitted  to  the  voters  of  the 
city  of  Portland,  Oregon,  at  the  general  municipal  election  held 

'  Governor  Hughes^  Plan  of  Direct  Primaries,  prepared  by  the  Direct 
Primaries  Association  of  New  York  (31  Nassau  Street,  New  York  City). 


474  American  Government  and  Politics 

June  7,  1909.  In  addition  to  the  modest  number  of  twenty- 
five  names  of  candidates  for  the  respective  offices  of  mayor, 
auditor,  treasurer,  city  attorney,  municipal  judge,  and  council- 
man at  large,  there  are  thirty-five  separate  legislative  proposi- 
tions on  which  the  elector  must  vote  "yes"  or  "no."  Some  of 
these  are  important,  and  their  submission  is  entirely  proper, 
such  as  the  proposition  to  establish  a  commission  form  of  govern- 
ment and  to  make  large  bond  issues  for  specific  purposes.  It 
is  difficult,  however,  to  see  why  the  whole  electorate  should 
be  asked  to  ponder  and  determine  whether  the  municipal  judge 
may  appoint  a  clerk  at  a  salary  of  not  less  than  $100  per  month, 
whether  a  woman's  auxiliary  shall  be  established  in  connection 
with  the  police  department,  whether  the  council  may  fix  the  salary 
of  the  city  engineer  at  not  less  than  $2400  per  annum,  and 
whether  the  rate  of  interest  on  special-assessment  arrears  shall  be 
raised  to  ten  per  cent.  In  view  of  the  serious  task  imposed  on  the 
voters  of  the  city  of  Portland  by  this  ballot,  the  interest  shown  in 
the  election  and  the  results  attained  are  most  creditable;  they 
show  a  high  degree  of  intelligence  and  capacity.  Nevertheless, 
the  burden  was  too  great;  and  it  is  authoritatively  stated  that 
there  is  now  on  foot  a  movement  to  restrict  the  number  of  refer- 
enda, amendments,  and  other  propositions  that  may  be  sub- 
mitted at  any  one  time  to  a  maximum  of  twelve. 

The  simple  truth  is  that  the  theory  of  popular  control  through 
a  multipUcity  of  elective  offices  does  not  work  in  practice.  In  the 
case  of  a  large  number  of  officers  there  is  no  question  of  policy 
involved,  because  their  functions  are  purely  ministerial,  prescribed 
by  statutes,  and  their  discharge  of  these  functions  is  enforceable 
through  the  ordinary  processes  of  law.  No  one  has  been  able 
to  discover  up  to  this  time  why  we  should  select  a  Republican 
state  treasurer  to  serve  with  a  Socialist  state  veterinarian;  and  it 
is  because  the  results  of  state  elections,  so  far  as  most  of  the  offices 
are  concerned,  are  of  shght  importance  to  anybody  except  the 
political  experts,  that  the  public  is  largely  indifferent  to  the  quali- 
fications of  the  minor  candidates.  The  real  failure  of  the 
democratic  theory,  however,  is  due  to  the  fact  that  it  is  abso- 
lutely impossible  for  any  considerable  number  of  voters  to  exer- 
cise any  discrimination  among  candidates  for  a  large  number  of 
offices.  It  is  a  matter  of  common  knowledge  that  in  almost  every 
state  election  the  only  candidates  who  are  seriously  discussed  i: 


1 


Popular  Control  in  State  Governments         475 

the  press  —  in  other  words,  the  only  candidates  upon  whose 
qualifications  and  record  any  light  is  thrown  —  are  those  seeking 
the  office  of  governor  and,  in  the  case  of  municipal  elections,  that 
of  mayor.  The  candidates  for  the  minor  state  offices  and,  what 
is  infinitely  more  important,  the  candidates  for  the  city  council 
and  the  legislature  are  generally  left  in  the  same  fog  which 
envelopes  the  candidates  for  the  position  of  coroner  or  clerk  of  the 
municipal  district  court.  There  are  of  course  exceptions  to  this 
rule,  but  it  appHes  quite  generally  throughout  the  United  States. 
It  is  simply  absurd  to  expect  the  voters  to  apply  any  standards 
of  discrimination,  that  is  of  control,  to  more  than  three  or  four 
groups  of  candidates.  This  is  the  testimony  of  many  practical 
pubhcists.  Mr.  Seth  Low,  in  an  address  at  Cornell  University 
in  1887,  said,  "  However  possible  it  may  be,  as  a  matter  of  theory, 
for  every  citizen  upon  election  day  to  cast  a  ballot  with  reference 
to  any  number  of  officials  based  upon  discriminating  knowledge 
of  the  duties  of  each  candidate,  as  a  matter  of  fact  it  is  not 
possible  for  the  citizen,  whose  time  is  largely  engrossed  in  his 
private  affairs,  to  obtain  the  detailed  knowledge  necessary  for 
such  an  act."  The  case  has  been  put  even  more  strongly  also 
by  Mr.  Clark,  "  So  ignorant  are  the  mass  of  us,  actually  and  of 
necessity,  about  the  special  qualifications  of  the  several  men  we 
vote  for,  that  if  the  names  on  the  ticket  were  shifted  round,  so 
that  the  candidate  for  Congress  were  running  for  state  engineer, 
the  superintendent  of  education  for  coroner,  and  the  sheriff  for 
judge,  it  would  be  all  the  same  to  us  in  nine  cases  out  of  ten."  * 
President  Woodrow  Wilson  has  described  the  situation  with 
characteristic  felicity  of  phrase:  — 

In  the  little  borough  of  Princeton,  where  I  live,  I  vote  a  ticket  of 
some  thirty  names,  I  suppose.  I  never  counted  them,  but  there  must 
be  quite  that  number.  Now  I  am  a  slightly  busy  person,  and  I  have 
never  known  anything  about  half  the  men  I  was  voting  for  on  the 
tickets  that  I  voted.  I  attend  diligently,  so  far  as  I  have  light,  to  my 
political  duties  in  the  borough  of  Princeton  —  and  yet  I  have  no  per- 
sonal knowledge  of  one-half  of  the  persons  I  am  voting  for.  I  couldn't 
tell  you  even  what  business  they  are  engaged  in  —  and  to  say  in  such 
circumstances  that  I  am  taking  part  in  the  government  of  the  borough 
of  Princeton  is  an  absurdity.  I  am  not  taking  part  in  it  at  all.  I  am 
going  through  the  motions  that  I  am  expected  to  go  through  by  the 

'  C.  C.  P.  Clark,  The  Machine  Abolished,  p.  86. 


4/6  American  Government  and  Politics 

persons  who  think  that  attending  primaries  and  voting  at  the  polls  is 
performing  your  whole  political  duty.  It  is  doing  a  respectable  thing 
that  I  am  not  ashamed  of,  but  it  is  not  performing  any  political  duty 
that  is  of  any  consequence.  I  don't  count  for  any  more  in  the  govern- 
ment of  the  borough  of  Princeton  than  the  veriest  loafer  and  drunkard 
in  the  borough,  and  I  do  not  know  very  much  more  about  the  men  I  am 
voting  for  than  he  does.  He  is  busy  about  one  thing  and  I  am  busy 
about  others.  We  are  preoccupied,  and  cannot  attend  to  the  govern- 
ment of  the  town.^ 

It  is  hardly  necessary  to  adduce  further  testimony  to  facts 
which  are  notorious;  but  the  facts  are  too  important  to  be 
slurred  over  because  they  are  familiar.  It  is  interesting  to  note 
that  in  Massachusetts,  where  the  form  of  the  ballot  requires 
the  voter  to  select  each  candidate  instead  of  voting  the  straight 
ticket  by  a  single  mark,  it  is  uniformly  the  case  that  the  candi- 
dates for  the  minor  offices  poll  considerably  less  than  the  total 
number  cast  for  the  candidates  for  the  higher  offices,  and  this 
notwithstanding  the  very  explicit  information  furnished  the 
voters  by  the  experts  of  all  party  organizations.  For  example, 
in  1908  the  total  vote  for  governor  was  442,544,  while  that  for 
auditor  was  393,010  or  88.5  per  cent;  in  1905  candidates  for 
auditor  polled  92.1  per  cent  of  the  total  vote  cast  for  governor; 
and,  in  the  preceding  election,  87.4  per  cent.  Similar  tendencies 
are  to  be  observed  in  other  states  where  the  Massachusetts  bal- 
lot is  in  use.  This  result  has  been  used  as  an  argument  against 
that  form  of  ballot;  it  is  contended  that  it  leads  the  voter  to  get 
tired  of  marking  and  to  stop  from  sheer  fatigue.  It  is  shown, 
however,  by  a  more  careful  analysis  of  election  results  extend- 
ing over  a  series  of  years,  that  while  the  vote  falls  for  the  minor 
state  officers,  it  rises  again  for  candidates  for  state  senator, 
at  least  where  the  result  is  not  a  foregone  conclusion.^ 

'  Civic  Problems,  an  address  delivered  March  9,  1909,  at  the  Annual 
Meeting  of  the  Civic  League  of  St.  Louis.  For  additional  literature  on  tlie 
subject  see  Gamaliel  Bradford,  The  Lesson  of  Popular  Government,  Vol.  11, 
pp.  417,  456,  467;  Charles  F.  Dole,  The  Spirit  of  Democracy;  Albert  Stick- 
ney,  Democratic  Government,  A  True  Republic  and  the  Political  Problem; 
C.  C.  P.  Clark,  The  Machine  Abolished;  L.  S.  Rowe,  Problems  of  City  Govern- 
ment, pp.  52,  174,  181,  201;  Goodnow,  Politics  and  Administration;  R.  S. 
Childs,  "The  Short  BaUot,"  Outlook,  July  17,  1909. 

^  See  articles  by  Richard  H.  Dana,  in  Annals  of  American  Academy  of 
Political  Science.  Vol.  II,  p.  745,  and  in  Atlantic  City  Conference  for  Good 
City  Government,  1906,  p.  355. 


Popular  Control  in  State  Governments         477 

An  informing  and  perhaps  somewhat  typical  census  of  poHti- 
cal  interest  on  the  part  of  voters  is  printed  by  Mr.  R.  S.  Childs.^ 
An  inquiry  among  the  voters  of  one  of  the  most  independent 
assembly  districts  in  Brooklyn  resulted  in  the  following  revela- 
tions: — 

Do  you  know  the  name  of  the  new  state  treasurer  just  elected? 
Yes:  13  per  cent. 

Do  you  know  the  name  of  the  present  state  treasurer?  Yes:  25 
per  cent. 

Do  you  know  the  name  of  the  new  state  assemblyman  for  this  dis- 
trict?    Yes:  30  per  cent. 

Do  you  know  the  name  of  the  defeated  candidate  for  assemblyman 
in  this  district?     Yes:    20 per  cent.     (Knew  both  of  above:    16  percent.) 

Do  you  know  the  name  of  the  surrogate  of  this  county?  Yes:  35 
per  cent. 

Do  you  know  the  name  of  your  alderman?     Yes:   15  per  cent. 

Do  you  know  whether  your  alderman  was  one  of  those  who  voted 
against  the  increase  in  the  poHce  force  last  year?     Yes:   2  per  cent. 

Nominations,  however,  must  be  made  and  the  offices  must  be 
filled.  Somebody  must  discover  when  each  officer's  term  ex- 
pires and  see  to  it  that  the  names  of  the  candidates  are  on  the 
ballot  in  due  form,  in  accordance  with  the  provisions  of  the 
election  law,  which  usually  equals  in  bulk  and  complexity  a 
moderately  comprehensive  treatise  on  the  British  constitution. 
Here  is  a  large,  important,  and  possibly  lucrative  function  to  be 
discharged;  and  since  the  "sovereign"  voters  have  failed,  as 
they  could  not  but  fail,  to  discharge  it  intelUgently  and  effi- 
ciently, the  pohticians  have  taken  the  matter  into  their  hands. 
The  resiilt  has  been  the  creation  of  a  structure  to  correspond 
with  the  function  —  the  pecuHarly  American  party  organization 
as  an  office-filUng  and  spoils-sharing  device. 

This  system  has  not  only  paralyzed  the  ballot,  but  it  has  also 
perverted  the  poUtical  party  from  its  true  function,  which  is  to 
reflect  and  formulate  the  poUcy  of  the  various  cohering  groups 
within  each  poUtical  area.  The  political  party  in  the  United 
States,  whatever  may  have  been  its  historic  role,  has  become  a 
standing  army  of  regulars,  doing  the  work  which  the  electorate 
is  supposed  to  do  and  in  too  many  cases  reaping  the  advantages 
which  should  accrue  to  the  public.  The  party  is  an  office- 
^The  Outlook,  July  17,  1909. 


478  American  Government  and  Politics 

filling  machine,  dealing  in  the  salaries  of  offices  and  the  privi- 
leges which  they  confer;  and  it  is  the  democratic  system  of  popu- 
lar election,  intended  to  estabUsh  the  rule  of  the  people  and 
commonly  supposed  to  reahze  this  intention,  which  in  fact 
prevents  the  people  from  ruling  steadily  and  effectively. 

It  is  the  opaque,  persistent,  adamantine  party  organization 
which  has  been  the  bane  of  our  poUtical  hfe.  Many  of  the 
best  men  are  wholly  excluded  from  the  state  legislatures  and 
from  minor  offices  because  of  the  necessity  of  coming  to  terms 
with  the  standing  army  of  experts.  Many  otherwise  efficient 
and  independent  men  are  compelled  to  use  their  offices  to  advance 
the  interests  of  the  organization  which  nominated  and  elected 
them.  Those  private  interests  which  have  corrupted  our  politics 
have  worked  through  the  extra-legal  organizations  rather  than 
through  the  officials  chosen  by  the  voters.  It  is  needless,  how- 
ever, to  dwell  further  on  a  thesis  which  has  been  conclusively 
estabHshed.^ 

General  recognition  of  the  fact  that  our  poHtical  machinery  has 
fallen  into  the  hands  of  groups  of  experts,  and  that  the  ballot 
at  the  regular  elections  is  only  a  ratification  of  the  "slates"  made 
by  the  experts  and  not  the  expression  of  the  will  of  the  voters, 
has  been  followed  by  popular  resentment,  and  by  the  demand 
that  means  be  found  for  expressing  and  enforcing  the  general 
will.  In  answer  to  this  demand  has  come  the  great  wave  of 
"direct  nomination"  and  "direct  government"  legislation  which 
is  sweeping  over  the  country.  Much  of  the  criticism  of  these 
two  reforms  is  due  to  a  misapprehension  of  the  forces  which 
have  called  them  into  hfe.  Each  of  these  reforms  has  its  justifi- 
cation in  the  practical  experience  of  the  people;  each  of  them  is 
largely  due  to  an  awakening  political  consciousness  which  it  is 
desirable  to  cultivate;  and,  if  not  pushed  to  extremes,  neither  of 
them  is  a  departure  from  approved  poHtical  experience.  But 
neither  of  these  reforms  can  make  party  government  in  the  United 
States  flexible,  representative,  and  responsible.  Indeed,  they 
may  only  worse  confound  the  already  tremendous  confusion. 

If  the  analysis  of  our  poHtical  difficulties  indicated  in  this 

chapter  is  correct,  namely,  that  the  weight  and  inflexibiHty  of 

our  party  machinery  are  due  to  the  number  of  elective  offices  to  be 

filled  at  each  election,  then  the  direct  nomination  device  will 

^  See  Goodnow,  Politics  and  Administration. 


Popular  Control  in  State  Governments         479 

duplicate  the  present  complicated  mechanism  and  will  render  it 
necessary  to  have  abler  experts,  who  understand  not  only  the 
mysteries  of  the  regular  election  law  but  the  added  mysteries  of 
the  primary  law  as  well.  The  ordinary  primary  law  provides  for 
the  election  of  several  committees,  establishes  an  intricate  sys- 
tem for  getting  names  on  the  primary  ballot,  and  adds  a  long  series 
of  penal  provisions.  The  Hinman-Green  measure,  which  was 
defeated  in  the  New  York  legislature  in  1909,  is  perhaps  the  only 
primary  bill  which  has  sought  to  simplify  in  any  way  the  older 
system.  In  most  states  the  primary  law  is  a  booklet  of  no  mean 
proportions  and,  taken  in  connection  with  the  ordinary  election 
law,  is  enough  to  stagger  the  experienced  student  of  law  and  poli- 
tics, to  say  nothing  of  the  inexperienced  voter  for  whose  guidance 
it  is  devised.  The  initiative  also  creates  more  machinery  and 
broadens  the  already  Brobdignagian  ballot.  With  petitions 
for  nomination,  petitions  for  initiative  and  referendum,  pri- 
mary elections  and  regular  elections,  it  looks  as  if  the  sovereign 
voter  in  securing  ostensible  control  over  everything  had  actually 
lost  control  over  everything. 

The  fact  is,  we  have  tried  in  the  United  States  almost  every 
scheme  known  in  the  history  of  poUtics  except  simple,  direct, 
responsible  government.  By  a  strange  perversity  of  fate,  the 
fear  of  democracy  and  the  passion  for  democracy  have  led 
to  the  same  result  —  the  creation  of  a  heavy  and  complicated 
political  mechanism,  yielding  quickly  enough  to  the  operations 
of  the  political  expert  and  blocking  at  every  turn  the  attempts 
of  the  people  to  work  it  honestly  and  efficiently.  Powerful 
private  interests  find  their  best  shelter  behind  a  multiplicity  of 
barriers,  politicians  have  no  desire  to  make  plain  the  rules  of 
the  game,  and  reformers  generally  attack  corruption  or  ineffi- 
ciency by  adding  some  new  office  or  board  of  control.  As  an 
outcome,  we  now  have  such  a  complex  of  offices,  commissions, 
caucuses,  primaries,  conventions,  and  elections  that  the  ordinary 
citizens,  engrossed  in  the  struggle  for  a  livelihood,  have  been 
unable  to  maintain  control  over  their  own  government,  and  it 
has  fallen  more  and  more  completely  into  the  hands  of  the  pro- 
fessional poHtician,  aptly  described  by  Mr.  R.  S.  Childs  as  one 
"who  knows  more  about  the  voter's  political  business  than  the 
voter  does  himself."  Before  we  can  accomplish  any  considerable 
reform  in  the  conduct  of  state  or  municipal  affairs  under  the 


480  American  Government  and  Politics 

present  system,  it  is  generally  necessary  to  break  down  a  con- 
trolling organization  of  experts;  and  to  do  this  we  must  create 
another  organization  of  experts  which,  for  one  reason  or  another, 
generally  becomes  as  bad  as  that  which  it  has  displaced.  And 
so  the  endless  warfare  of  American  poHtics  goes  on,  dissipating  the 
energies  that  might  be  devoted  to  the  work  of  government  in 
more  or  less  fruitless  contests  over  the  possession  of  its  mechanism. 

There  are,  however,  a  few  indications  that  some  portions  of 
the  electorate  are  becoming  dimly  conscious  that  the  political 
instruments  with  which  they  are  attempting  to  wage  the  battle 
of  democracy  are  wholly  unsuited  for  the  fray.  The  recent 
tendency  to  exalt  the  executive  ^  is  doubtless  due  principally  to 
the  feeUng  on  the  part  of  the  voters  that  the  best  way  to  secure 
results  is  to  concentrate  attention  on,  and  to  work  through,  the 
executive,  rather  than  to  waste  time  in  contests  over  a  multitude 
of  offices.  The  important  reforms  achieved  in  some  states  by 
this  process  and  the  wholesome  effect  which  it  has  had  in  arousing 
the  political  consciousness  of  the  people  are  beyond  question. 
But  this  tendency  toward  executive  government  is  extra-legal, 
and  it  is  not  without  its  dangers  for  the  representative  system, 
which  is,  in  the  long  run,  the  real  safeguard '  of  democracy. 
Nevertheless,  the  movement  has  demonstrated  that  the  American 
people  have  an  interest  in,  and  a  capacity  for,  real  poKtics,  as 
distinguished  from  the  pettifogging  of  the  office-mongers  or  the 
intrigues  of  privilege-seekers;  and  it  has  also  shown  that  our 
public  opinion  can  translate  itself,  into  action  when  it  operates 
upon  a  simple  piece  of  mechanism.  The  lesson  of  this  is  surely 
obvious:/  the  ballot  should  be  so  simpHfied  as  to  concentrate 
the  public  attention  upon  the  choice  of  a  few  powerful  and 
responsible  officers.  ( 

Representative,  responsible,  efficient  government  is  our  goal; 
and  the  way  to  it  Hes  not  through  additional  and  more  compHcated 
poHtical  machinery,  but  through  such  a  simplification  of  our 
present  machinery  as  will  permit  the  electorate  to  bring  steady 
and  persistent  pressure  on  the  great  organs  of  government  in  the 
broad  daylight  of  interested  pubUc  discussion.  This  truth  has 
been  recognized  by  the  most  careful  students  and  observers  of  our  fl 
system  of  government.  Mr.  Albert  Stickney,  as  early  as  1879,  ^' 
expounded  the  idea  in  his  True  Republic;  Mr.  F.  W.  Whitridge,  in 
*  Readings,  p.  442. 


J 


Popular  Control  in  State  Governments         481 

his  work  on  the  Caucus  System,  and  Dr.  Dallinger,  in  his  Nomina- 
tions for  Elective  Offices,  have  pointed  out  that  the  sirapUfication  of 
the  ballot  is  not  only  a  necessary  element  in  the  scheme  of  making 
nominations  but  an  important  reform  in  our  system  of  govern- 
ment. Professor  Merriam,  in  his  careful  study  of  direct  nomina- 
tions, reaches  the  conclusion  that  the  system  can  attain  its  best 
results  only  after  a  material  reduction  in  the  number  of  elective 
offices.^ 

Students  of  local  government,  in  which  perhaps  the  long 
ballot  may  be  used  with  the  least  harm,  are  coming  to  the  same 
conclusion.  Professor  Fairlie,  in  his  work  on  Local  Govern- 
ment, writes:  — 

There  can  be  no  doubt  that  there  are  too  many  elective  county 
officers.  Their  very  number  makes  a  popular  election  impossible  in 
practice.  Even  the  most  intelligent  voter  cannot  become  acquainted 
with  the  merits  and  demerits  of  the  numerous  candidates,  and  perforce 
must  vote  on  the  basis  of  a  party  ticket  or  on  a  vague  impression  for 
most  of  the  offices.  The  effective  choice  is  necessarily  made  in  most 
cases  by  party  leaders;  and  the  attempt  to  apply  the  elective  principle 
universally  has  had  the  paradoxical  effect  of  defeating  its  own  purpose.^ 

It  is  perhaps  in  our  municipal  government  that  the  long 
ballot  has  been  the  greatest  enemy  to  democratic  government. 
As  early  as  1871,  Mr.  Charles  Nordhoff  wrote:  — 

The  folly  of  obliging  the  people  to  decide  at  the  polls  upon  the  fit- 
ness for  office  of  a  great  number  of  persons  lies  at  the  bottom  of  almost 
all  the  misgovernment  from  which  we  suffer,  not  only  in  the  cities  but 
in  the  states.  It  is  a  darling  device  of  the  political  jobbers  and  a  most 
successful  one;  for,  under  the  hollow  pretence  that  thus  the  people 
have  greater  power,  they  are  able  to  crush  public  spirit,  to  disgust  de- 
cent and  conscientious  citizens  with  politics,  to  arrange  their  'slates,' 
to  mix  the  rascals  judiciously  with  a  few  honest  men  wherever  public 
sentiment  imperatively  demands  that  much,  and  to  force  their  stacked 
cards  upon  the  people.^ 

Mr.  Clinton  Rogers  Woodruff  supports  this  conclusion:  — 

We  rail  against  the  bosses  and  we  denounce  party  organization,  as 
if  that  would  avail,  while  we  overlook  the  direct  cause  of  the  whole 

'  Merriam,  Primary  Elections,  pp.  167  ff. 
^  Local  Government  in  Counties,  Towns,  and  Villages,  p.  70. 
3  North  American  Review,  Vol.  CXIII,  pp.  327  ff. 
21 


482  American  Government  and  Politics 

trouble  —  the  complexity  of  our  methods.  How  is  a  voter  who  is 
called  upon  to  vote  for  candidates  for  twenty-two  offices  at  a  single 
election  to  exercise  any  caution  which  a  conscientious  citizen  should 
exercise?  .  .  .  We  play  directly  into  the  hands  of  the  worst  sort  of  a 
dictator  —  an  unofl&cial  one/ 

President  Wilson,  in  the  address  quoted  above,  puts  the  argu- 
ment trenchantly: — 

Elaborate  your  government;  place  every  officer  upon  his  own  dear 
Uttle  statute;  make  it  necessary  for  him  to  be  voted  for;  and  you  will 
not  have  a  democratic  government.  Just  so  certainly  as  you  segregate 
all  these  Httle  offices  and  put  every  man  upon  his  own  statutory  pedes- 
tal and  have  a  miscellaneous  organ  of  government,  too  miscellaneous 
for  a  busy  people  either  to  put  together  or  to  watch,  public  aversion 
will  have  no  effect  on  it;  and  public  opinion,  finding  itself  ineffectual, 
will  get  discouraged,  as  it  does  in  this  country,  by  finding  its  assaults 
like  assaults  against  battlements  of  air,  where  they  find  no  one  to  resist 
them,  where  they  capture  no  positions,  where  they  accomplish  nothing. 
You  have  a  grand  housecleaning,  you  have  a  grand  overturning,  and 
the  next  morning  you  find  the  government  going  on  just  as  it  did  be- 
fore you  did  the  overturning.  What  is  the  moral?  .  .  .  The  remedy 
is  contained  in  one  word:  simplification.  SimpHfy  your  processes, 
and  you  will  begin  to  control;  comphcate  them,  and  you  will  get  farther 
and  farther  away  from  their  control.  Simplification!  simpHfication! 
simplification!  is  the  task  that  awaits  us;  to  reduce  the  number  of  per- 
sons to  be  voted  for  to  the  absolute  workable  minimum — knowing  whom 
you  have  selected;  knowing  whom  you  have  trusted;  and  having  so 
few  persons  to  watch  that  you  can  watch  them. 

It  would  be  possible  to  summon  a  host  of  witnesses,  pub- 
licists, men  of  affairs,  and  practical  politicians,  in  support  of  the 
doctrine  that  our  elective  system  has  been  so  overdone  that  it 
has  ceased  to  be  in  fact  an  elective  system  and  has  become  the 
prize  of  the  expert.  It  would  be  possible  to  show  a  number  of 
instances  in  which  corrupt  influences  have  actually  sought  the 
establishment  of  elective  offices  for  the  very  purpose  of  taking  , 
the  control  of  them  out  of  the  hands  of  the  electorate.^    ]H| 

'  Political  Science  Quarterly,  Vol.  XV,  pp.  267  ff. 

'  S.  E.  Moffett,  "  The  Railroad  Commission  of  California,"  Annals  of  the 
American  Academy  of  Political  Science,  Vol.  VI,  pp.  469  et  seq.;  J.  R.  Com-    , 
mons,  "The  La  FoUette  Railroad  Law,"  Review  of  Reviews,  Vol.  XXXII. 
pp.  76  ff. 


XXXII,    j 


Popular  Control  in  State  Governments         483 

would  be  possible  to  demonstrate  that  no  other  country  in  the 
world  wastes  so  much  of  its  best  political  energy  in  overcoming 
the  friction  of  its  governmental  machinery.  But  it  seems  a 
work  of  supererogation  to  push  the  argument  farther. 

The  effort  to  attain  a  ballot  short  enough  to  assure  real  popular 
control  should  begin  in  a  reform  of  the  central  government  of 
the  state,  by  giving  the  governor  power  to  appoint  all  of  the  exec- 
utive officials,  just  as  the  President  of  the  United  States  appoints 
the  heads  of  departments.  No  good  reason  can  be  advanced 
why  purely  administrative  officers  like  auditors,  treasurers,  and 
secretaries  should  be  elected,  for  they  have  no  large  discretionary 
power  and  no  share  in  shaping  the  poUcy  of  the  administration. 
If  the  lieutenant-governor  is  made  the  presiding  officer  of  the 
upper  house  of  the  state  legislature,  some  reason  may  be  advanced 
for  making  the  office  elective;  but  it  would  be  better  to  allow  the 
Senate  to  elect  its  own  president.  It  often  happens  that  the 
governor  is  at  loggerheads  with  the  very  men  who  are  to  assist 
him  in  "the  faithful  execution  of  the  laws,"  because  they  belong 
to  the  different  political  parties  or,  what  is  often  worse,  to  con- 
tending factions  within  the  same  party.  In  more  than  one  in- 
stance a  governor  has  been  on  such  unfriendly  terms  with  his 
attorney-general  that  he  has  not  dared  to  ask  his  advice  on  any 
serious  legal  question.  The  desirabiUty  of  the  proposed  concentra- 
tion of  power  is  becoming  more  apparent  as  executive  functions 
increase  in  number  and  complexity,  and  as  the  necessity  of  effi- 
cient and  responsible  administration  becomes  clearer.  More 
than  one  governor,  possessed  of  large  practical  experience  and 
animated  by  a  sincere  desire  to  establish  efficient  administration, 
has  called  attention  to  the  anomaly  of  our  disintegrated  admin- 
istrative system.  Only  a  governor  obsessed  by  the  theory  of 
popular  election  or  unwilling  squarely  to  assume  the  responsi- 
bility of  his  office  can  deny  the  imperative  necessity  of  greater 
centralization.* 

In  the  sphere  of  municipal  government  there  are  already 
marked  tendencies  in  the  direction  of  simplification.^  All  the 
recent  charters  of  our  large  cities  are  increasing  the  appointing 
power  of  the  mayor  and  giving  him  a  larger  place  in  the  scheme 
of  municipal  administration.  What  New  York  has  done  in  this 
regard  is  a  matter  of  common  knowledge.  The  recent  report 
^  Below,  p.  507.  2  ggg  below,  chap,  xxvii. 


484  American  Government  and  Politics 

of  the  Boston  Finance  Commission  recommends  "a  simplified 
ballot  with  as  few  names  thereon  as  possible;  the  abolition  of 
party  nominations;  a  city  council  of  a  single  small  body  elected 
at  large ;  the  concentration  of  executive  power  and  responsibiUty  in 
the  mayor;  the  administration  of  departments  by  trained  experts 
or  persons  with  special  qualifications  for  the  office;  full  pubHcity 
secured  through  a  permanent  finance  commission." 

The  commission  form  of  government,  which  is  rapidly  win- 
ning public  favor,  is  an  extreme  form  of  simplification;  in  facjt, 
such  an  extreme  form  that  there  are  grave  objections  to  it.  No 
government,  state  or  municipal,  is  merely  concerned  with  busi- 
ness-like and  "economical"  administration,  as  some  of  our  mer- 
cantile statesmen  would  have  us  believe.  There  are  always 
large  pohcies  to  be  determined  affecting  liberty  and  property, 
and  here  is  where  the  representative,  deliberative  element  has 
its  legitimate  and  indispensable  function.  Any  scheme  of  gov- 
ernment that  ignores  it  is  bound  in  the  long  run  to  fail. 

It  is  not  Hkely  that  the  voters  in  rural  counties  would  wel- 
come any  simplification  that  would  take  from  them  the  privilege 
of  voting  for  a  long  fist  of  county  officers;  although,  as  Pro- 
fessor Fairlie  indicates  in  the  passage  quoted  above,  the  elective 
offices  in  county  government  are  not  all  filled  by  real  election. 
In  the  counties  there  is  perhaps  less  need  of  simplification  than 
in  the  more  populous  urban  centres  where  the  personal  element 
in  politics  is  not  so  marked;  and  while  the  appointing  power  of 
the  county  board  might  well  be  increased  to  cover  all  the  county 
offices  except  those  of  the  sheriff  and  prosecuting  attorney,  it 
is  not  certain  that  such  a  change  is  requisite  or  even  desir- 
able. If  county  elections  are  separated  from  state  elections,  it 
will  hardly  be  necessary  to  overturn  a  system  which  has  so 
long  existed  unchallenged;  although  persons  who  have  had 
practical  acquaintance  with  "court-house  rings"  will  from 
time  to  time  be  moved  to  advocate  drastic  reform  in  rural 
government  also. 

The  ballot  may  be  simpHfied,  of  course,  by  another  method 
than  that  of  reducing  the  number  of  elective  offices.  The 
number  of  elections  may  be  increased.  County,  municipal, 
state,  and  national  elections  may  be  separated,  —  in  those  states 
where  political  experiments  are  not  viewed  with  alarm  they  are 
already  being  separated,  —  and  the  terms  of  officers  may  be  so 


Popular  Control  in  State  Governments  485 

lengthened  that  the  voter  will  not  be  confronted  annually  or 
biennially  with  too  long  and  too  bewildering  a  list  of  names. 
It  is  conceivable  that  this  change  may  be  combined  with  a  de- 
crease in  the  number  of  elective  offices.  Thus,  by  lengthening 
terms,  separating  elections,  and  making  the  minor  offices  ap- 
pointive, the  desired  ballot  reform  may  perhaps  be  accompHshed 
without  disturbing  too  violently  those  Jeffersonian  traditions 
which  still  have  so  strong  a  sway  over  the  minds  of  our  fellow- 
citizens.  '  • 

The  results  of  any  proposed  reform  in  institutions  are  always 
highly  problematical,  so  elusive  are  the  collateral  forces  which 
come  unexpectedly  into  play  after  it  has  been  accomplished.^ 
Nevertheless,  if  one  confines  himself  to  predicting  "the  main 
chance  of  things,"  he  may  prophesy  "with  a  near  aim."  By 
eliminating  wholesale  nominations,  a  drastically  simpHfied  ballot 
ought  to  decimate  the  ranks  of  the  expert  office-fillers  and  thus 
help  to  break  down  that  closely  knit  extra-legal  organization 
through  which  some  of  the  most  malignant  interests  in  Ameri- 
can politics  have  operated.  This  simplification  of  our  party 
organization,  accompanied  by  close  legal  control,  including 
direct  nominations  in  some  form,  would  surely  make  our  scheme 
of  government  more  transparent  to  public  gaze  and  ought  to 
save  not  a  little  of  the  enormous  amount  of  energy  that  is  now 
spent  in  fighting  organizations  —  that  is  to  say,  in  marking  time. 
It  would,  in  fine,  uncover  the  enemy  and  let  the  voters  see,  not 
only  the  fine  of  battle,  but  also  the  plan  of  campaign. 

The  simplification  of  the  ballot  ought  so  to  simplify  our  politics 
that  a  larger  number  of  citizens  would  understand  their  own 
government.  It  would  enable  the  citizen  to  do  his  political 
work  with  a  minimum  amount  of  activity;  activity  in  itself, 
some  of  the  new  prophets  notwithstanding,  being  no  virtue. 
Man  is  not  made  for  the  state,  if  we  eschew  German  political 
science,  but  the  state  for  man.  There  is  no  merit  in  fighting 
sham  political  battles  over  organizations  and  personaUties  —  the 
chief  business  in  the  American  governing  process  as  now  con- 
stituted. At  all  events  it  would  be  difficult  to  convince  most 
people  that  it  is  more  virtuous  to  spend  the  best  part  of  the 
year  in  trying  to  oust  an  incompetent  state  veterinarian,  placed  in 

'  No  legislator  at  Albany,  for  example,  foresaw  the  famous  "Raines  hotel 
sandwich"  when  the  Raines  bill  was  under  consideration. 


486  American  Government  and  Politics 


office  nominally  by  popular  election,  but  in  reality  by  the  "slate 
makers,"  than  it  is  to  read  Dean  Swift  or  Rabelais  or  to  play  chess 
The  point  is  to  get  a  state  veterinarian  who  knows  his  business, 
not  to  keep  civic  virtue  at  a  certain  degree  of  temperature  by 
poUtical  exercise. 

Whether  this  contention  is  sound  or  not,  the  fact  remains  that 
the  mass  of  the  voters  take  sHght  interest  in  the  details  of  politics. 
As  Mr.  Roosevelt  vigorously  puts  it:  — 

It  may  be  accepted  as  a  fact,  however  unpleasant,  that,  if  steady 
work  and  much  attention  to  detail  are  required,  ordinary  citizens  to 
whom  participation  in  politics  is  merely  a  disagreeable  duty  will  always 
be  beaten  by  the  organized  army  of  politicians  to  whom  it  is  both  duty, 
business,  and  pleasure,  and  who  are  knit  together  and  to  outsiders  by 
their  social  relations.  On  the  other  hand,  average  citizens  take  a  spas- 
modic interest  in  public  affairs;  and  we  should  therefore  so  shape  our 
governmental  system  that  the  action  required  by  the  voters  should  be 
as  simple  and  direct  as  possible,  and  should  not  need  to  be  taken  any 
more  often  than  is  necessary.  Governmental  power  should  be  con- 
centrated in  the  hands  of  a  very  few  men  who  would  be  so  conspicuous 
that  no  citizen  could  help  knowing  all  about  them;  and  the  elections 
should  not  come  too  frequently.  Not  one  decent  voter  in  ten  will  take  the 
trouble  annually  to  inform  himself  as  to  the  character  of  the  host  of 
petty  candidates  to  be  ballotted  for,  but  he  will  be  sure  to  know  all 
about  the  mayor,  comptroller,  etc.  It  is  not  to  his  credit  that  we  can 
only  rely,  and  that  without  much  certainty,  upon  his  taking  a  spas- 
modic interest  in  the  government  that  afifects  his  own  well-being;  but 
such  is  the  case,  and  accordingly  we  ought,  as  far  as  possible,  to  have 
a  system  requiring  on  his  part  intermittent  and  not  sustained  action.^ 

Finally,  this  simplification  of  politics  and  reduction  in  the 
weight  and  complexity  of  our  party  organization  —  a  programme 
which  by  no  means  includes  the  destruction  of  party  organiza- 
tions —  ought  to  have  a  wholesome  effect  in  giving  us  some  real 
politics  at  our  city  halls  and  state  capitols  instead  of  the  sham 
politics  of  warfare  between  " reformers''  and  "bosses"  —  the 
distinguishing  futility  of  American  poUtical  Hfe.  A  wag  at 
Albany  once  remarked  that  the  chief  function  of  parties  is  to 
give  the  organizations  that  polled  the  highest  and  the  next  highest 
number  of  votes  at  the  last  preceding  gubernatorial  election 
places  on  the  newly  created  boards  and  commissions.     Whoever 

^American  Ideals,  p.  132. 


1 

ate     ^j 


Popular  Control  in  State  Governments         487 

doubts  the  essential  soundness  of  this  penetrating  analysis  by 
an  "expert"  may  find  overwhelming  demonstration  of  its  truth 
in  President  Lowell's  statistics  on  party  voting  in  the  United 
States.^  If  we  could  get  the  office-filUng  machine  out  of  the 
way,  we  might  possibly  get  an  ahgnment  of  parties  on  real 
issues. 

^  The  Government  of  England,  Vol.  II,  chap,  xxx;    see  also  Report  of  the 
American  Historical  Association  for  1901. 


CHAPTER  XXIV 

THE   STATE   EXECUTIVE   DEPARTMENT* 

The  Office  of  Governor 

In  no  branch  of  the  state  government  have  we  departed  further 
from  the  example  set  by  the  first  state  constitutions  than  in  the 
executive  department.  This  has  been  due  in  part  to  social 
and  economic  changes  w^ch  have  multipUed  administrative 
offices,  and  in  part  to  a  growing  distrust  of  the  legislature  and 
an  increasing  confidence  in  the  governor.  In  their  contest  against 
British  dominion,  the  colonists  had  used  their  legislatures  with 
great  effect  against  the  provincial  governors,  and  it  was  only 
natural  that,  after  securing  independence,  they  should  have  re- 
garded the  executive  with  great  jealousy,  and  looked  rather  to 
the  legislature  as  the  safeguard  of  their  liberties.  At  the  outset, 
therefore,  the  governor  was  a  mere  nonentity,  or  at  best  a  servant 
of  the  legislature;  but  from  this  position ^f  political  insignifi- 
cance, the  office  has  been  gradually  raised  by  the  addition  of  new 
powers  and  duties,  until  to-day  the  governor  of  the  state  possesses 
a  constitutional  and  administrative  authority  of  no  mean  pro- 
portions; and  when  he  becomes,  as  he  may,  the  representative 
of  great  popular  interests  he  not  only  overshadows  the  legislature, 
but  sometimes  springs  into  prominence  as  a  national  figure.- 

Notwithstanding  this  increase  of  power,  the  governor,  in  his 
relation  to  the  state  administration,  does  not  yet  possess  any  such 
high  authority  as  is  vested  in  the  President  of  the  United  States 
by  the  Constitution.  The  national  executive  office  was  created 
by  men  who  feared  the  usurpation  of  all  power  by  the  legislature, 
and  placed  their  hopes  in  the  controlling  influence  of  an  energetic 
executive  elected  in  an  indirect  manner.  The  best  principles  of 
the  FederaHsts,  especially  those  relating  to  efficiency  and  strength 

K'  The  principle  of  separalion  of  powers  is  applied  in  our  state  govern- 
ments as  well  as  in  th^  federal  government.    Above,  p.  152. 
'  See  Readings,  p.  442. 

488 


A 


The  State  Executive  Department  489 

in  a  government,  have  been  unhappily  too  often  discarded  along 
with  the  doctrines  of  class  rule  by  our  state  constitution- makers 
in  their  haste  to  avoid  everything  which  did  not  have  at  least  a 
democratic  appearance  according  to  the  tenets  of  the  Jefferso- 
nian  school.  Consequently,  we  have  not  yet  given  the  governor 
the  control  over  state  administration  which  is  required  for  the 
efficient  and  responsible  conduct  of  an  executive  business  greater 
than  that  which  fell  upon  our  early  Presidents/  It  must  be 
remembered  that  the  population  of  the  state  of  New  York  alone 
is  now  greater  than  that  of  the  entire  nation  at  the  beginning  of 
the  new  federal  government.  That  commonwealth  also  now  has 
an  army  of  about  10,000  state  employees  —  many  times  the 
number  under  Washington  at  the  close  of  his  first  administration. 
In  all  of  the  states  exceptMississippi "  the  governor  is  elected 
by  direct  popular  vote,  the  plan  of  selection  by  the  legislature 
having  been  abandoned  long  ago.  In  many  states,  the  candidates 
for  the  office  of  governor  are  nominated  by  party  conventions 
composed  of  delegates  apportioned  among  the  counties  or  other 
subdivisions  of  the  state  according  to  party  vote,  or  population, 
or  some  arbitrary  rule.  In  New  York,  the  Democratic  state 
convention  is  composed  of  three  delegates  from  each  assembly 
district,  and  the  Republican  convention  of  one  delegate  from  each 
assembly  district  and  one  additional  delegate  for  each  1060  Re- 
publican votes  cast  in  the  district  at  the  last  preceding  presi- 
dential election.  In  a  large  number  of  states  (Nebraska,  Wiscon- 
sin, Kansas,  Oregon,  Oklahoma,^  etc.)  the  state  convention  has 
been  aboUshed  by  law,  and  each  party  is  compelled  to  select  its 
candidates  for  governor  and  other  state  offices  by  direct  vote, 
usually  of  the  enrolled  party  members.  This  \' direct  primary" 
is  Uke  an  election  within  each  party.  For  example,  any  Repub- 
lican who  wants  to  be  a  candidate  for  the  office  of  governor  in 
Oregon  must  get  his  name  on  the  primary  ballot  of  his  party  by 
securing  the  signatures  of  a  certain  number  of  RepubUcan  voters 
to  a  petition;  and  on  primary  day,  each  RepubUcan  may  designate 
one  among  the  several  persons  whose  names  are  thus  placed  on 
the  ballot  as  his  choice  for  the  Republican  candidate  for  governor 
at  the  next  ensuing  general  election.     The  person  receiving  the 

'  For  Governor  Hughes'  view  of  this,  see  Readings,  p.  436. 
^  In  this  state  there  is  a  curious  indirect  process. 
'  See  below,  chap.  xxx. 


490  American  Government  and  Politics 


highest  number  of  votes  at  this  primary  is  declared  to  be  the  offi 
cial  Republican  candidate,  and  his  name  is  then  printed  on  the 
regular  election  ticket  along  with  the  names  of  the  candidates  of 
other  parties  selected  in  the  same  manner.  The  nominees  of  the 
several  parties  are  then  placed  before  the  voters  of  the  state  at  a 
general  election.  It  is  now  the  commonly  accepted  practice  to 
declare  that  candidate  for  governor  elected  who  receives  the  high- 
est number  of  votes  —  not  necessarily  a  majority.* 

In  New  York,  the  governor  must  be  thirty  years  of  age,  and 
this  is  the  rule  for  all  except  a  few  states.  Citizenship  and  a 
term  of  residence  in  the  state  (five  years  in  New  York)  are 
almost  unvarying  qualifications.  Some  states  stipulate  that  the 
governor  cannot  be  reelected  to  succeed  himself;  Indiana,  for 
example,  provides  that  he  shall  hold  ofiice  for  four  years,  but 
shall  not  be  eligible  for  more  than  four  in  any  period  of  eight  years. 
Other  states,  however,  place  no  Umitation  whatever  on  the  num- 
ber of  terms  which  a  governor  may  serve;  but  general  practice 
has  fixed  it  at  not  more  than  two  terms,  though  the  third-term 
rule  is  by  no  means  so  absolute  as  in  the  case  of  the  presidency. 
It  is  a  customary  practice  also  to  forbid  the  governor  to  hold  any 
federal  office  during  his  term  of  service;  and  Alabama,  Cahfornia, 
and  Utah  provide  that  he  shall  not  be  elected  to  the  United 
States  Senate  during  his  term  of  office. 

Twenty-two  states  fix  the  governor's  term  ^  at  four  years,  and 
twenty-one  at  two  years;  only  two  states,  Massachusetts  and 
Rhode  Island,  retain  the  older  practice  of  annual  elections;  and 
New  Jersey  alone  has  a  triennial  election.  The  tendency  is 
strongly  in  the  direction  of  the  longer  term;  even  the  new  con- 
stitution of  Oklahoma,  which  reflects  in  many  clauses  the  spirit 
of  the  Jeffersonian  democracy,  fixes  it  at  four  years.  This  is  the 
result  of  the  recognition  of  the  patent  fact  that  the  governor  must 
have  time  at  least  to  master  the  details  of  the  complicated  system 
over  which  he  presides  if  there  is  to  be  an  efficient  administration. 
No  considerable  attempt,  however,  has  been  made  to  coordinate 
the  governor's  term  with  those  of  the  administrative  officers 
whom  he  may  appoint.  In  fact,  the  terms  of  the  latter  are  fre- 
quently longer  than  the  governor's. 

'  Most  of  the  states  provide  that,  in  case  of  a  tie,  the  legislature,  in  joint 
session,  shall  choose  from  among  the  leading  candidates. 
*  See  table  on  the  next  page. 


n 


The  State  Executive  Department 


491 


SALARIES  AND  TERMS  OF  THE  GOVERNORS  OF  THE  STATES, 
DECEMBER,  1909  1 


States 


Alabama      .     . 
Arkansas      .     . 
California    .     . 
Colorado      .     . 
Connecticut 
Delaware     ,     . 
Florida    .     .     . 
Georgia  .     .     . 
Idaho      .     .     . 
Illinois     .     .     . 
Indiana        .     , 
Iowa        .     .     . 
Kansas    .     .     . 
Kentucky    .     . 
Louisiana     .     . 
Maine     .     .     . 
Maryland     .     . 
Massachusetts 
Michigan     .     . 
Minnesota 
Mississippi 
Missouri      .     . 
Montana      .     . 
Nebraska     .     . 
Nevada        .     . 
New  Hampshire 
New  Jersey 
New  York 
North  Carolina 
North  Dakota 
Ohio        .     .     . 
Oklahoma    .     . 
Oregon    .     .     . 
Pennsylvania 
Rhode  Island   . 
South  Carolina 
South  Dakota 
Tennessee    .     . 
Texas      .     .     . 
Utah       .     .     . 
Vermont      .     . 
Virginia       .     . 
Washington 
West  Virginia 
Wiscoiisin    .     . 
Wyoming     .    . 


Capitals 


Term  of 
Service 


Montgomery 
Little  Rock 
Sacramento 
Denver  .     . 
Hartford     . 
Dover     .     . 
Tallahassee 
Atlanta 
Boise      .     . 
Springfield  _ 
Indianapolis 
Des  Moines 
Topeka 
Frankfort 
Baton  Rouge 
Augusta 
Annapolis    . 
Boston    .     . 
Lansing 
St.  Paul      . 
Jackson 
Jefiferson  City 
Helena   .     . 
Lincoln 
Carson  City 
Concord 
Trenton 
Albany 
Raleigh 
Bismarck     . 
Columbus   . 
Guthrie 
Salem     .     . 
Harrisburg 
Providence 
Columbia    . 
Pierre     .     . 
Nashville    . 
Austin    .     . 
Salt  Lake  City 
Montpelier 
Richmond 
Olympia 
Charleston 
Madison 
Cheyenne 


Years 

4 
2 
4. 
2 
2 
4 
4 
2 

2 

4 
4 


Expiration  of 
Term 


^  From  the  Congressional  Directory,  December,  1909,  p.  286. 


492  American  Government  and  Politics 

The  salary  paid  to  the  governor  is  sometimes  fixed  by  the  state 
constitution,  but  many  commonwealths,  following  the  example  of 
the  federal  Constitution,  leave  the  amount  to  the  discretion  of  the 
legislature.  About  half  the  states  pay  the  governor  $5000  or 
more  a  year.  The  constitution  of  New  York  has  placed  his 
compensation  at  $10,000,  but  stipulates  that  the  legislature 
shall  provide  "a  suitable  and  furnished  executive  residence." 

The  formal  powers  enjoyed  by  the  governor  must  be  sought  in 
the  express  terms  of  the  constitution.  The  legislature  possesses 
every  power  and  authority  not  denied  to  it;  but  the  governor  has 
no  such  high  prerogative.  The  customary  clause  that  "the 
executive  power  shall  be  vested  in  a  governor"  bestows  upon  him 
practically  no  authority  that  is  not  exphcitly  conferred  somewhere 
by  the  written  instrument  itself.  As  Professor  Goodnow  puts 
it:  "  Little  if  any  power  is  to  be  regarded  as  vested  in  the  governor 
as  a  result  of  the  grant  to  him  of  executive  power.  .  .  .  The 
state  courts  have  not  derived,  as  has  the  Supreme  Court  of  the 
United  States,  any  very  large  powers  from  such  a  general  power 
or  duty  as  the  duty  to  see  that  the  laws  be  faithfully  executed. 
In  other  words,  the  principle  of  narrow  construction  is  more 
commonly  adopted  with  regard  to  the  powers  of  the  governor 
than  with  regard  to  those  of  the  President."^ 

Powers  of  the  Governor  in  Relation  to  the  Administration 

The  state  constitution  generally  vests  the  "executive  power" 
in  the  governor  and  charges  him  to  take  care  that  the  laws  are 
faithfully  executed.  In  the  enforcement  of  the  law,  the  governor 
has  to  deal  with  private  persons  and  with  the  pubUc  officials.  In 
the  former  instance,  he  acts  directly  in  important  matters,  by  order- 
ing the  state's  attorney  to  proceed  in  the  proper  court  against 
offenders;  or,  when  there  is  a  riot  or  other  disorder  too  serious  for 
the  regular  processes  of  the  courts,  he  may  declare  martial  law  in 
the  region  affected  and  employ  the  militia  of  the  state.^ 

In  the  ordinary  course  of  law  enforcement  the  governor  of  the 
American  commonwealth  stands  in  a  peculiar  position.  Unlike 
the  federal  administration,  in  which  substantially  all  the  officers 
are  grouped  in  proper  divisions  and  subdivisions  under  heads  of 


'  Principles  of  the  Administrative  Law  of  the  United  States,  p.  95.     Read- 
ings, p.  432.  2  Readings,  p.  449 


lead-   ■ 

J 


The  State  Executive  Department  493 

departments  selected  by  the  President  personally  and  removable 
by  him  at  will,  the  state  administration  is  not  organized  in  a 
hierarchical  form,  but  consists  of  a  large  number  of  officers,  bu- 
reaus, commissions,  andjioard?,  some  elective  and  some  appoin- 
tive,  each  with  its  appropriate  duties^arescribed  bvJaw.  The 
head  oraTdepartment  is  not  a  head  at  all  in  the  sense  in  which 
the  term  is  used  at  Washington.  Compare,  for  example,  the 
Secretary  of  the  Treasury  of  the  United  States  with  the  treasurer 
of  New  York.  The  former  is  appointed  by  the  President,  and  in 
his  department  are  grouped  the  revenue  and  disbursing  officers, 
the  federal  banking  authorities,  and,  in  short,  all  the  federal  offi- 
cers deaUng  with  taxation,  revenues,  and  finance.  The  treasurer 
of  New  York  is  elected  by  popular  vote;  he  is  custodian  of  the 
moneys  paid  into  the  treasury  and  he  pays  out  on  proper  war- 
rants; he  is  commissioner  of  the  land  office,  a  member  of  the 
canal  board,  a  trustee  of  Union  College,  a  member  of  the  state 
board  of  equalization,  and  some  other  boards.  The  supervision 
of  banking,  insurance,  excises  and  assessments,  and  taxation  is 
in  the  hands  of  single  officers  or  boards  appointed  by  the  governor 
with  the  consent  of  the  senate  and  removable  only  by  the  consent 
of  that  body.  If  the  treasurer  does  not  do  his  duty,  the  governor 
may  temporarily  suspend  but  cannot  remove  him;  he  can  only 
institute  tedious  legal  proceedings  against  him.  To  control  the 
state  financial  administration,  the  governor  has  not  merely  to 
\\ratch  the  treasurer,  he  must  watch  all  of  the  various  indepen- 
dent officers  and  commissioners,  whom  he  may  not  have  chosen 
in  the  first  place  and  whom  he  cannot  remove  at  will.  There 
is  accordingly,  as  Governor  Hughes  put  it,  "wide  domain  of  ex- 
ecutive or  administrative  action  over  which  he  has  no  control  or 
slight  control."  * 

One  of  the  primary  effects  of  this  decentralization  is  to  prevent 
that  harmonious  cooperation  among  the  various  chief  administra- 
tive officials  which  is  so  marked  in  the  President's  cabinet.  Of 
'course,  it  sometimes  happens  that  all  of  these  officials  are  of  one 
poHtical  party  and  represent  a  coherent  section  of  that  party; 
but  it  also  often  happens  that  the  governor  is  the  "drawing 
card"  on  the  party  ticket,  while  obscure  machine  workers  with 
no  administrative  capacity  and  sometimes  with  Uttle  integrity 
are  associated  with  him  as  candidates  for  the  minor  state  execu- 
'  Readings,  p.  436. 


494  American  Government  and  Politics 

live  ofl5ces.  There  is  at  least  one  instance  in  our  history  of  a  gov- 
ernor's being  afraid  to  trust  the  legal  advice  of  the  attorney-gen- 
eral of  his  state  on  account  of  the  strong  factional  feeling  which 
existed  between  them.  This  form  of  antagonism  is  often  more 
marked  when  the  governor  represents  one  party  and  his  immedi- 
ate associates  another. 

It  requires  no  very  profound  political  thought  to  discover  the 
inherent  defects  of  such  a  disjointed  administrative  system,  and 
there  is  some  tendency  in  a  few  states  to  combine  more  lines  of 
executive  control  in  the  hands  of  the  governor.  This  tendency  is 
not  universal  and  persistent,  however,  for  many  of  the  states  are 
continuing  the  older  policy  of  making  the  new  commissions  elec- 
tive and  independent  of  the  governor's  authority.^  Neverthe- 
less, the  appointing  power  of  the  governor  is  on  the  increase,  es- 
pecially in  the  East.  This  is  not  entirely  due  to  the  conscious 
recognition  of  the  relation  between  administrative  centralization 
and  efficiency,  but  is  partially  on  account  of  the  physical  impos- 
sibility of  making  the  entire  throng  of  state  officials  elective. 

WhereJJie.appointing  power  is  vested  inthe^Qvernor, it  is  often 
shared  by  the  upper  house  of  the  legislature.  In  New  York,  for 
example,  the  governor  and  senate  appoint  the  superintendents  of 
the  insurance  and  banking  departments,  the  excise  commis- 
sioners, the  members  of  the  two  public  service  commissions,  the 
superintendent  of  public  works,  the  commissioner  of  agriculture, 
the  commissioner  of  health,  the  civil  service  commission,  and  sev- 
eral other  important  state  officials.  Their  terms  vary  in  length 
—  practically  all  of  them  being  longer  than  the  governor's  — 
and  in  general  the  governor  must  have  the  consent  of  the  senate 
in  order  to  remove  them.  The  chief  exception  is  the  public 
service  commission,  the  members  of  which  can  be  removed  by 
the  governor  without  the  consent  of  the  senate.^  jm 

In  some  states,  the  legislature  itself  exercises  a  considerabllBI 
appointing  power.     For  example,  in  New  Jersey,  Delaware,  and 
four  other  states  the  state  treasurer  is  chosen  by  the  legislature. 

A  slight  step,  however,  in  the  direction  of  strengthening  the  gov- 
ernor's administrative  control  has  been  taken  in  many  states, 
by  vesting  in  him  the  power  to  make  special  inquiries  into  the 

'  See  below,  p.  508. 

^  The  superintendent  of  public  works  and  superintendent  of  prisons  are 
movable  by  the  governor  alone,  after  a  hearing. 


The  State  Executive  Department  495 

working  of  the  various  executive  departments.  The  constitution 
of  Montana,  for  example,  provides  that  "The  governor  may 
require  information  in  writing  from  the  officers  of  the  executive 
department  upon  any  subject  relating  to  the  duties  of  their 
respective  offices,  which  information  shall  be  given  upon  oath 
whenever  so  required;  he  may  also  require  information  at  any 
time,  under  oath,  from  all  officers  and  managers  of  state  institu- 
tions upon  any  subject  relating  to  the  condition,  management,  and 
expenses  of  their  respective  offices  and  institutions,  and  may,  at 
any  time  he  deems  it  necessary,  appoint  a  committee  to  investi- 
gate and  report  to  him  upon  the  condition  of  any  executive  office 
or  state  institution." 

The  constitution  of  Georgia  makes  it  obligatory  upon  the 
governor  to  examine  under  oath,  quarterly  or  even  more  fre- 
quently, the  treasurer  and  comptroller-general  on  all  matters 
pertaining  to  their  respective  offices  and  to  inspect  and  review 
their  books  and  accounts.  Occasionally,  but  not  often,  the  gov- 
ernor is  given  power  to  suspend  certain  state  officers  during  a 
recess  of  the  legislature.  The  governor  of  New  York,  for  example, 
may  temporarily  suspend  the  treasurer  whenever  it  shall  appear  to 
him  that  that  officer  has  violated  his  duty  in  any  particular;  and 
under  the  Moreland  act  of  1908  he  may  order  an  investigation  of 
any  department.  In  several  states,  the  various  officers  are  re- 
quired to  make  periodical  reports  or  render  opinions  in  writing  to 
the  governor,  but  these  are  generally  perfunctory,  or  at  best  of 
slight  significance  in  advancing  the  governor's  power  of  control 
over  the  administration. 

The  governor  is  commander-in-chief  of  the  armed  forces  of  the 
state,  and  in  case  of  an  extraordinary  disturbance  beyond  the 
control  of  the  regular  officers  of  the  law  he  may  call  out  the  state 
militia  to  restore  order.  Usually  in  this  connection  he  has  the 
power  of  suspending  the  writ  of  habeas  corpus,  thus  staying  the 
processes  of  courts  and  placing  the  Ufe  and  property  involved  in 
the  disorder  in  the  care  of  the  military  authorities.  Most  states 
declare  that  the  writ  of  habeas  corpus  may  not  be  suspended  un- 
less in  times  of  rebellion  and  invasion  when  the  public  safety  may 
require  it.  Two  of  the  states  stand  with  Oklahoma  in  providing 
that  the  writ  shall  never  be  suspended  by  the  authorities  of  the 
state,  thus  leaving  it  always  open  to  persons  claiming  that  their 
rights  are  infringed  by  the  military  to  appeal  to  judicial  tribunals. 


496  American  Government  and  Politics 


Relation  to  the  Legislature 

It  is  a  regular  practice  to  confer  upon  the  governor  the  duty  of 
communicating  with  the  legislature  on  the  state  of  the  common- 
wealth and  of  recommending  such  legislative  measures  as  he  may 
see  fit.  This  right,  like  that  enjoyed  by  the  President/  may 
become  a  powerful  instrument  in  presenting  issues  to  the  people 
and  in  forcing  the  legislature  to  act.  "It  is  not,"  said  Governor 
Hughes,  "his  constitutional  function  to  attempt,  by  use  of  pat- 
ronage or  by  bargaining  with  respect  to  bills,  to  secure  the  passage 
of  measures  he  approves.  It  is  his  prerogative  to  recommend 
and  to  state  the  reasons  for  his  recommendation,  and  in  common 
with  all  representative  officers,  it  is  his  privilege  to  justify  his 
position  to  the  people  to  whom  he  is  accountable."  The  gov- 
ernor, in  his  message,  often  sets  the  tasks  for  the  legislature;  and 
in  case  of  the  refusal  of  that  body  to  accept  his  proposals,  he  may, 
if  he  is  confident  of  popular  support,  take  advantage  of  the  im- 
portant power  of  calling  a  special  session  of  the  legislature  to 
consider  the  particular  rneasures  he  has  at  heart. 

While  it  is  a  common  practice  for  ttie  governor  to  include  in 
his  regular  message  to  the  legislature  a  statement  of  the  finances 
of  the  commonwealth,  nine  states  require  him  to  propose  the  bud- 
get. "He  shall,"  runs  the  Missouri  constitution,  "at  the  com- 
mencement of  each  regular  session,  present  estimates  of  the 
amount  of  money  required  to  be  raised  by  taxation  for  all  pur- 
poses." Like  the  report  of  the  Treasury  to  Congress,  this 
budget  is  usually  little  more  than  a  list  of  suggestions  to  the  legis- 
lature; but  taken  in  connection  with  the  power  (which  many 
governors  have)  to  veto  single  items  in  appropriation  bills,  it 
may  become  an  important  instrument  in  the  hands  of  a  strong 
governor  who  has  a  decided  fiscal  policy.^ 

The  power  of  calling  extraordinary  sessions  of  the  legislature 
is  now  regularly  conferred  by  the  state  constitution,  and  often 
the  governor  is  bound  to  submit  to  the  legislature  the  propo- 
sals to  be  considered  at  such  sessions.  The  governor  may  "on 
extraordinary  occasions,"  the  constitution  of  Ohio  provides, 
"convene  the  general  assembly  by  proclamation,  and  shall 
state  to  both  houses  when  assembled  the  purpose  for  which  they 

'  See  above,  p.  199.  2  Below,  chap.  xxxi. 


A 


The  State  Executive  Department  497 

have  been  convened."  The  New  York  constitution  expressly 
stipulates  that  no  subject  shall  be  acted  upon  by  a  special  session 
except  such  as  the  governor  may  recommend,  and  thus  the  leg- 
islature cannot  evade  the  issue  which  the  governor  has  set.^  A 
notable  example  of  the  exercise  of  this  power  occurred  in  1908, 
when  the  legislature  of  New  York,  having  refused  to  accept  the 
recommendation  'of  Governor  Hughes  to  aboUsh  race- track 
gambhng,  was  called  in  a  special  session  and  forced  to  act  under 
the  direct  observation  of  a  public  intensely  interested  in  this 
particular  measure.  The  practical  significance  of  such  a  power 
in  the  governor's  hands  needs  no  further  comment. 

An  inquiry  recently  addressed  to  the  governors  of  a  number  of 
states  resulted  in  some  interesting  conclusions  on  this  point  of 
executive  influence  over  the  legislature.-  It  appears  that,  with 
few  exceptions,  the  legislatures  generally  follow  the  suggestions 
of  the  governors  with  regard  to  particular  matters  of  legislation, 
but  not  merely  because  the  proposals  come  from  the  chief  execu- 
tive. The  legislatures  really  respond  to  an  imperative  public 
opinion  which  is  reflected  in  the  policies  of  the  governor,  who,  by 
virtue  of  his  high  position,  is  best  able  to  gauge  the  popular  tem- 
per. One  governor  urged  that  whenever  the  executive  of  a  com- 
monwealth desires  certain  laws,  he  should  lay  his  plan  before  the 
legislature  in  the  form  of  a  carefully  drafted  bill,  and  then  interest 
influential  men  in  the  measure,  acquainting  them  with  the  argu- 
ments for  and  against  it.  Another  governor  replied:  "The  leg- 
islature of  the  present  year  enacted  into  law  practically  all  the 
measures  suggested  by  the  governor  in  his  message  to  that  body. 
I  mention  a  few  of  these  as  indicating  the  general  character  of 
the  legislation  in  several  of  the  states:  the  anti-pass  bill,  two- 
cent  fare  bill,  prohibiting  contributions  by  corporations  for 
political  purposes,  primary  election  bill,  joint  freight  rate  bill, 
child  labor  bill,  extension  of  pure  food  law,  resolution  asking 
Congress  to  call  a  convention  for  amendment  of  Constitution  so 
that  United  States  Senators  may  be  elected  by  the  people."  The 
authors  who  conducted  this  investigation  conclude:  "There  is 
certainly  no  menace  in  the  power  of  the  chief  executive  of  the 
commonwealth.  He  has  too  Uttle.  Greater  centralization  of 
administrative  power  and  unity  of  effort  are  here  desirable.     But 

'  Readings,  p.  447. 

^Finley  and  Sanderson,  The  American  Executive,  pp.  181  ff. 

2K 


498  American  Government  and  Politics 


at  the  same  time  it  is  manifest  that  he  has  ceased  to  be  in  some 
states,  if  not  in  all,  the  'mere  hands  of  the  legislative  brain,'  as 
Mr.  Bryce  characterizes  him,  whose  merit  'is  usually  tested  by 
the  number  and  boldness  of  his  vetoes.'  " 

With  one  exception.  North  CaroUna,  all  states  give  the  gov- 
ernor the  power  to  veto  measures  passed  by  the  legislature  and  also 
permit  the  legislature  to  override  a  veto  by  a  repassage.^  About 
two-thirds  of  the  states,  at  the  present  time,  require  a  majority 
of  two- thirds  in  both  houses  to  overcome  the  governor's  veto; 
Delaware,  Maryland,  and  Nebraska  fix  the  majority  at  three- 
fifths;  and  a  few  permit  repassage  by  a  mere  majority  vote. 
In  the  hope  of  checking  the  extravagance  of  the  legislatures,  more 
than  half  of  the  states  authorize  the  governor  to  veto  single  items 
in  appropriation  bills,  and  in  three  states,  Washington,  Virginia, 
and  Ohio,  the  governor  may  even  veto  a  part  or  parts  of  any 


)me    ^1 


measure.^ 


It  is  customary,  in  case  of  an  exercise  of  the  veto  power,  for  the 
governor  to  return  the  bill  to  the  house  in  which  it  originated 
with  a  statement  of  his  objections.  As  in  the  case  of  the  national 
executive,  it  is  generally  understood  that  the  governor  may  veto 
measures  out  of  accord  with  his  policy  as  well  as  measures  which 
are  clearly  unconstitutional.  "The  plain  intent  of  the  consti- 
tution," says  Governor  Hughes,  "is  that  the  governor  shall 
express  his  judgment  upon  legislative  measures  before  him  and 
that  his  judgment  shall  control  unless  the  measure  is  so  strongly 
supported  that  it  counts  in  its  favor  two-thirds  of  the  members 
of  the  legislative  houses  after  the  objections  have  been  formally 
stated."  ^ 

Tn  addition  to  his  executive  and  legislative  functions,  the  gov- 
ernor generally  enjoys  the  quasi- judicial  function  of  issuing  re- 
prieves, commutations,  and  pardons.  In  some  states  he  exer- 
cises it  in  conjunction  with  the  legislature  or  the  upper  house  of 

^  Readings,  p.  444. 

^  The  time  given  the  governor  to  consider  legislative  measures  varies  from 
three  to  ten  days;  but,  of  course,  he  knows  about  all  important  bills  from 
the  time  of  their  introduction  to  their  final  passage.  In  case  of  the  adjourn- 
ment of  the  legislature,  in  New  York  and  some  other  states,  the  governor 
is  given  thirty  days  to  consider  measures  submitted  to  him,  and  if  any  bill 
is  not  approved  by  him  within  that  time  it  fails  to  become  a  law.  Dealey, 
Our  State  Constitutions,  pp.  31  fit. 

3  Inaugural  Address,  1909. 


The  State  Executive  Department  499 

that  body;  inotherstatesitissharedby  a  board  of  pardons;  and 
in  several  the  governor  is  made  solely  responsible. 

In  Pennsylvania,  for  instance,  the  governor  has  the  power  to 
remit  fines  and  forfeitures,  to  grant  reprieves,  commutations  of 
sentence,  and  pardons,  except  in  cases  of  impeachment;  "but 
no  pardon  shall  be  granted  nor  sentence  commuted,  except  upon 
the  recommendation  in  writing  of  the  heutenant-governor,  sec- 
retary of  the  commonwealth,  attorney-general,  and  secretary  of 
internal  affairs,  or  any  three  of  them,  after  full  hearing,  upon  due 
public  notice  and  in  open  sessions,  and  such  recommendation, 
with  the  reasons  therefor  at  length,  shall  be  recorded  and  filed  in 
the  office  of  the  secretary  of  the  commonwealth,"  New  York, 
however,  has  accepted  the  great  argument  of  Hamilton,^  that  a 


single  person  is  the  best  depository  of  such  an  important  power  /  W< 
because,  being  alone  responsible,  he  dreads  charges  of  weakness  7  Ij 
or  connivance  and  is  not  likely  to  be  so  obdurate  as  a  group  of  V 
men.     That  state,  therefore,  gives  the  governor  sole  power  to     \ 
grant  reprieves,  commutations,  and  pardons,  after  conviction,      j 
for  all  offences  except  treason  and  cases  of  impeachment,  with  ^ 
such  restrictions  and  limitations   on  its   exercise  as  he  may 
think  proper.^ 

The  State  Administrative  System 

The  administrative  oflicers  of  a  commonwealth  fall  into  two 
groups:  the  older  officers,  such  as  the  secretary  and  treasurer, 
and  the  newer  officers,  such  as  the  commissioner  of  labor  and 
superintendent  of  banking,  whose  functions  are  the  outgrowth 
of  recent  social  and  economic  development. 

I.  Among  the  first  group  (usually  elected  by  popular  vote) 
are  the  following: 

(i)  A  majority  of  the  states  have  a  lieutenant-governor  who 
is  the  legal  successor  of  the  governor  in  case  of  the  death,  impeach- 
ment, or  disability  of  the  latter.  The  lieutenant-governor  is  also 
generally  president  of  the  senate,  with  a  casting  vote.  In  those 
states  where  there  is  no  lieutenant-governor,  it  is  the  common 
practice  to  designate  the  president  of  the  senate  or  the  secretary 
as  the  successor  in  case  of  a  vacancy  in  "the  office  of  governor. 

(2)  All  commonwealths  have  a  secretary  of  state  whose  func- 

^  The  Federalist,  No.  XXVI.  ^  Readings,  p.  448. 


coo  American  Government  and  Politics 

tions  are  pretty  much  the  same  everywhere.  He  is  the  custodian 
of  the  state  archives;  he  has  charge  of  the  publication  and  dis- 
tribution of  laws;  he  is  generally  keeper  of  the  election  records, 
issues  notices  for  elections,  and  supervises  the  compilation  of 
election  returns  for  state  offices.  In  some  states  he  issues  cer- 
tificates of  incorporation  to  companies  formed  under  the  general 
laws,  including  banking  and  insurance  companies;  he  reports  an- 
nually to  the  legislature  on  a  large  number  of  subjects  as  ordered 
by  law  or  by  legislative  resolution;  he  administers  the' oath  to 
members  of  the  legislature  and  other  state  officers;  he  is  ex  officio 
member  of  certain  boards  and  commissions;  and  he  is  the  cus- 
todian of  the  great  seal  of  the  state. 

(3)  Every  state  has  a  treasurer  who  is  the  keeper  of  the  moneys 
accruing  to  the  state  from  taxes,  fees,  and  other  sources  of  rev- 
enue and  who,  on  proper  warrants  based  in  due  form  upon 
legislative  appropriations,  pays  out  the  money  of  the  state. 

(4)  In  most  states  there  is  an  auditor  or  comptroller.  In  gen- 
eral, we  may  say,  the  comptroller  audits  all  accounts  against 
the  state,  draws  warrants  on  the  treasury  for  the  payment  of 
moneys  as  directed  by  law,  designates  the  banks  in  which  pubHc 
funds  are  to  be  deposited,  levies  and  collects  certain  of  the  more 
important  state  taxes,  inquires  periodically  into  the  court  and 
trust  funds  deposited  with  county  treasurers,  appoints  exam- 
iners and  prescribes  the  forms  of  reports  under  the  municipal 
accounting  laws,  and  at  the  same  time  acts  as  ex  officio  member 
of  certain  boards  and  commissions. 

(5)  It  is  the  duty  of  the  attorney-general  to  prosecute  and 
defend  all  actions  and  proceedings  in  which  the  state  has  an 
interest,  to  advise  the  governor  and  other  state  officers  on  legal 
questions,^  to  take  charge  of  the  legal  business  of  the  depart- 
ments and  bureaus  of  the  state  requiring  the  services  of  counsel  in 
order  to  protect  pubUc  interests.  In  New  York,  the  attorney- 
general  has  certain  specific  duties  in  addition  to  the  general 
supervision  of  the  state's  legal  interests:  when  required  by  the 
governor,  either  he  or  one  of  his  deputies  must  appear  before  any 
supreme  court  or  the  grand  jury  thereof  for  the  purpose  of  con- 
ducting such  criminal  proceedings  as  the  governor  may  specify; 
upon  the  request  of  the  governor,  secretary  of  state,  treasurer,  or 
state  engineer  and  surveyor,  the  attorney-general  must  prosecute 

'  For  an  example,  see  Readings,  p.  452. 


The  State  Executive  Department  501 

any  person  charged  with  the  violation  of  the  laws  which  either  of 
these  officers  is  especially  required  to  execute;  and  he  must  cause 
all  persons  indicted  for  corrupting,  or  attempting  to  corrupt,  any 
member  of  the  legislature,  to  be  brought  to  trial. 

II.  The  second  group  of  state  officers  embraces  such  a  variety 
of  public  functionaries  that  they  can  hardly  be  enumerated  here. 
As  the  burdens  of  our  commonwealth  governments  have  increased 
with  the  growth  of  the  population,  industries,  cities,  and  corpora- 
tions, the  legislatures  have  created  new  offices,  boards,  and  com- 
missions charged  with  carrying  into  effect  regulations  deaUng 
with  specific  matters.  These  may  be  classified  in  four  divisions: 
(i)  those  supplementary  to  the  older  departments,  such  as  excise, 
tax,  and  civil  service  commissions;  (2)  those  in  charge  of  public 
property  and  public  works;  (3)  those  connected  with  the  social 
activities  —  education,  charities,  and  health;  .and  (4)  those  deal- 
ing with  economic  questions  relative  to  insurance,  banking,  cor- 
porations, and  labor.  These  new  state  offices  have  been  created 
one  after  the  other  as  new  demands  have  been  made  upon  the 
legislature;  and  as  the  federal  poHcy  of  classifying  and  subdivid- 
ing into  departmental  hierarchies  has  not  been  adopted  by  our 
commonwealths,  the  result  has  been  the  creation  of  a  system 
which  is  the  very  apotheosis  of  chaos  and  irresponsibihty. 

In  New  York,  for  example,  we  have  a  state  engineer  and  sur- 
veyor, a  superintendent  of  insurance,  a  superintendent  of  banks, 
a  commissioner  of  excise,  a  superintendent  of  public  works, 
a  commissioner  of  education,  a  commissioner  of  agriculture,  a 
forest,  fish,  and  game  commissioner,  a  commissioner  of  health, 
a  state  civil  service  commission  of  three  members,  a  prison  com- 
mission of  seven  members,  a  superintendent  of  prisons,  a  superin- 
tendent of  pubUc  buildings,  a  state  architect,  a  tax  commission 
of  three  members,  a  commissioner  of  labor,  a  lunacy  commission 
of  three  members,  a  board  of  charities,  managers  for  a  large 
variety  of  charitable  and  reformatory  institutions,  a  fiscal  super- 
visor of  state  charities,  a  water  supply  commission,  a  land  office 
commission,  a  canal  board,  a  commission  for  the  canal  fund,  a 
state  board  of  canvassers,  an  equalization  board,  a  classification 
board  controlling  wages  of  labor  for  state  employments,  a  state 
historian,  a  miscellaneous  reporter,  a  quarantine  commission, 
a  superintendent  of  weights  and  measures,  a  commission  for  the 
promotion  of  uniform  legislation  in  the  United  States,  an  agent 


502  American  Government  and  Politics 

for  the  Indian  tribes,  a  voting  machine  commission,  a  board  of 
pharmacy,  an  embalming  board,  a  state  fair  commission,  a  stat- 
utory consolidation  board,  a  highway  commission,  and  two 
public  service  commissions  —  to  say  nothing  of  some  other  minor 
independent  commissions  and  offices. 

In  examining  the  multitude  of  state  administrative  instru- 
mentaUties  one  is  struck  by  the  tendency  of  the  legislatures  to 
vest  speciaUzed  functions  in  the  hands  of  elected  or  appointed 
boards  or  commissions.  Some  of  these  commissions  are  merely 
temporary  —  that  is,  designed  to  investigate  certain  conditions 
and  problems  for  the  purpose  of  reporting  to  the  legislature.' 
Other  commissions  and  boards  have  semi- judicial  powers;  but 
most  of  them  are  charged  primarily  with  what  may  be  properly 
called  executive  functions. 

Two  reasons  may  be  advanced  for  this  tendency  to  multiply 
boards  and  commissions.  In  the  first  place,  it  is  often  impossible 
for  the  legislature  to  prescribe  fixed  conditions  under  which 
private  persons  and  corporations  must  conduct  their  affairs; 
for  example,  there  is  certainly  an  obvious  injustice  in  prescribing 
a  flat  passenger  rate  of  two  cents  a  mile  throughout  the  state, 
for  such  a  rate  may  be  entirely  just  for  some  companies  and  con- 
fiscatory for  others,  according  to  the  distribution  of  passenger 
business,  the  mileage  operated,  etc.  Therefore  our  legislators, 
compelled  to  face  detailed  and  complicated  problems  of  adminis- 
tration, seek  to  escape  from  the  dilemma  by  delegating  certain 
of  their  powers  to  commissions  and  authorizing  them  to  make 
and  enforce  minute  and  specific  regulations. 

In  the  second  place,  the  creation  of  commissions  is  an  easy 
way  of  evading  or  postponing  the  actual  solution  of  a  legislative 
problem.^ 

Government  through  such  state  commissions  has  been  severely 
attacked  in  recent  years.  It  is  pointed  out  that  when  a  com- 
mission is  once  created,  it  begins  a  heroic  fight  for  an  increase 
in  its  powers  and  in  its  annual  appropriations.  It  is  claimed 
also  that  poHticians  without  experience  in  practical  business 
affairs  are  often  placed  on  boards  having  control  of  great  railway 
and  other  corporations,  the  intricacies  of  whose  operations  can 
be  imderstood  only  by  the  most  highly  trained  administrative  i 

*  For  the  work  of  such  a  commission,  see  Readings,  p.  471. 
^Readings,  p.  453.  ; 


The  State  Executive  Department  503 

officials;  and  as  a  result  the  reasonable  operations  of  these  private 
companies  are  seriously  hampered  without  any  corresponding 
good  accruing  to  the  pubhc.  A  recent  writer  has  declared: 
"The  present-day  methods  of  administration  through  com- 
missions are  neither  economical,  efficient,  nor  responsible.  On 
the  contrary,  from  the  evidence  before  us  they  seem  to  be  the 
most  extravagant  methods,  having  a  great  lack  of  efficiency 
and  being  responsible  to  no  one.  Their  creation,  too,  has  taken 
a  part  of  the  executive  power  from  where  it  logically  belongs 
and  transferred  it  to  them  in  a  manner  which  greatly  weakens 
executive  power  and  authority,  while  it  does  not  inure  to  the 
benefit  of  the  people."^ 

To  this  criticism  of  commission  government,  the  defenders 
of  the  system  reply  that  we  cannot  allow  the  great  corporations 
to  go  unregulated  as  they  have  been  in  the  past,  and  the  legis- 
latures simply  cannot  control  the  details  of  great  private  under- 
takings. Accordingly,  they  conclude,  a  commission  of  experts 
with  large  powers  to  prescribe  rules  for  particular  matters  is 
the  only  institution  through  which  the  state  may  regulate  cor- 
porate enterprises,  unless  it  is  prepared  to  assume  direct  owner- 
ship and  operation. 

The  bewildering  Ust  of  commissions,  boards,  and  departments 
which  we  find  in  every  important  state  is  simply  appalling  when 
we  take  into  account  the  necessity,  in  public  administration,  of 
providing  for  efficient  work  and  of  fixing  definite  responsibility. 
These  boards  and  officers  are  frequently  lobbying  against  one 
another  in  the  legislature  for  appropriations  and  an  increase 
of  powers.  Some  of  them  are  elected  by  popular  vote;  and 
others  are  appointed  by  the  governor,  with  or  without  the  ap- 
proval of  some  branch  of  the  legislature.  Their  terms  vary 
so  that  the  appointing  power  never  has  an  opportunity  to  make 
a  clean  sweep  and  introduce  more  efficient  administrative  meth- 
ods. Some  of  these  subordinate  authorities  may  be  removed 
by  the  governor  alone  and  others  by  the  governor  and  the  senate, 
and  still  others  by  the  very  difficult  process  of  impeachment.^ 
Any  one  who  has  followed  the  somewhat  uninteresting  history 
of  state  administration  during  the  last  quarter  of  a  century 

^  L.  A.  Blue,  in  the  Annals  of  the  American  Academy  of  Social  and  Political 
Science,  Vol.  XVIII,  pp.  434  ff. 
^  See  below,  p.  509. 


504 


American  Government  and  Politics 


is  well  aware  of  the  wastefulness  and  inefficiency  resulting  from 
this  disintegrated  and  irresponsible  system. 

The  situation  is  thus  eloquently  described  in  a  plea,  made  by 
a  committee  of  citizens  in  Oregon.^  "There  are  forty-seven 
boards  and  commissions  created  to  enforce  the  laws  and  manage 
the  business  of  the  state  of  Oregon,"  says  the  committee.  "In 
addition  to  these  we  have  the  governor,  secretary  of  state,  state 
treasurer,  superintendent  of  instruction,  state  printer,  attorney- 
general,  commissioner  of  labor,  thirty-four  sheriffs,  unknown 
numbers  of  deputies,  poUce,  and  constables,  eleven  district  at- 
torneys, and  thirty-seven  deputies.  Every  one  is  in  a  great 
degree  independent  of  all  others  and  of  everybody  else.  There 
is  no  one  officer  who  is  responsible  to  the  people  of  the  state  for 
the  enforcement  of  state  laws  and  the  efficient  management  of 
the  state  business.  The  constitution  says  'the  governor  shall 
take  care  that  the  laws  of  the  state  be  faithfully  executed,' 
but  gives  him  no  power  beyond  that  of  making  recommendations. 
No  successful  private  business  is  conducted  so  carelessly  as 
American  public  business,  and  it  is  generally  admitted  that  the 
state  and  county  governments  are  seldom  successful  either  in 
enforcing  the  laws  or  giving  the  taxpayers  good  value  for  their 
money." 

As  a  remedy  for  this  disorder  in  the  body  politic,  the  com- 
mittee proposes  that  the  governor  shall  appoint  the  attorney- 
general,  the  secretary  of  state,  state  treasurer,  state  printer, 
superintendent  of  public  instruction,  secretary  of  labor,  and  the 
state  business  manager;  ^  and  that  these  officers  shall  serve 
during  the  governor's  pleasure  under  his  immediate  direction 
and  act  as  his  advisory  cabinet.  The  committee  furthermore 
proposes  that  the  governor  shall  appoint  the  sheriff  and  district 
attorney  in  each  county.  The  new  state  officer,  the  state  busi- 
ness manager,  is  to  organize,  consoUdate,  and  manage  the  business 
affairs  of  the  state,  subject  to  the  governor's  directions;  and 
the  governor  is  to  take  over  the  control  of  all  state  institutions 
and  pubUc  functions  in  the  hands  of  boards  and  commissions, 
retaining  only  such  as  he  deems  expedient  and  economical  — 
thus  assuming  before  the  people  absolute  responsibiHty  for  the 

_  *  Suggested  Atnetidments  to  the  Constitution  of  Oregon,  W.  S.  U'Ren,  Oregon 
City,  Oregon,  August  14,  1909. 

^  Governor  Hughes  in  his  message  of  1910  recommended  a  similar  reform. 


The  State  Executive  Department  505 

efficient  conduct  of  the  entire  business  of  the  state.  If  this 
proposal  is  enacted  into  law,  it  will  institute  in  the  state  of  Oregon 
a  political  system  founded  in  part  upon  the  principles  of  the 
national  administration.  It  could  hardly  be  said,  therefore, 
that  it  would  constitute  a  new  experiment  in  American  pohtics, 
but  it  certainly  would  be  watched  with  great  interest  by  all  other 
commonwealths. 

A  second  method  of  centralizing  state  administration  and 
responsibility  is  suggested  by  Mr.  Herbert  Croly,  who  urges  that 
American  citizens  have  no  particular  reason  for  being  proud 
of  their  state  governments  because  those  governments  have  not, 
in  actual  practice,  shown  themselves  capable  of  undertaking 
successfully,  economically,  and  efficiently  those  large  pubHc 
enterprises  required  by  the  social  and  economic  advance -of  our 
time.^ 

This  critic,  accordingly,  suggests  a  reconstruction  of  our  com- 
monwealth governments  somewhat  along  the  following  lines. 
The  centre  of  the  new  system  would  be  a  governor,  elected  for 
a  long  term,  but  liable  to  recall  by  the  voters  under  certain  defi- 
nite restrictions.  The  governor  would  be  surrounded  by  a 
cabinet  composed  of  the  heads  of  departments  appointed  by 
himself;  ^  he  would  have  the  power  of  removing  every  important 
administrative  officer  in  the  state  and  would  hold  his  depart- 
mental chiefs  strictly  responsible  to  him  for  the  administration 
of  their  several  departments.  Departmental  chiefs  would  be 
able  to  appoint  their  more  important  subordinates,  but  the 
technical  work  of  the  administration  would  be  in  the  hands  of 
experts  chosen  under  a  carefully  planned  civil  service  system. 
The  legislature,  under  this  scheme  of  government,  would  consist 
of  a  single  chamber  composed  of  delegates  elected  from  districts 
by  some  system  of  cumulative  voting  which  would  give  minority 
representation  and  at  the  same  time  provide  for  recall  by  the 
voters.  Under  this  proposal,  American  traditions  as  to  the 
separation  of  executive  and  legislative  power  would  be  entirely 
abandoned;  and  the  governor  would  be  given  not  only  the  veto, 
but  also  the  right  to  propose  legislation  and  dissolve  the  legis- 

^  The  Promise  of  American  Life,  pp.  315  ff. 

^  In  some  New  England  states  the  governor  now  has  an  advisory  council, 
but  it  is  of  slight  importance;  and  in  North  Carolina  certain  state  officers 
aer  constituted  a  "Council  of  State." 


5o6  American  Government  and  Politics 

lature  and  appeal  to  the  people  in  case  his  particular  measures 
were  rejected  or  seriously  amended.  Critics  of  this  scheme  will 
probably  regard  it  as  un-American  and  fanciful;  but  in  view  of 
the  recent  tendencies  in  •  municipal  government  toward  some 
such  system,  it  may  not  be  unreasonable  to  expect,  in  the  distant 
future  at  all  events,  a  modification  of  the  entire  structure  of  state 
government  along  lines  of  greater  centralization  of  responsibility, 
greater  simphcity  of  structure,  and  more  constant  control  in 
the  hands  of  the  voters. 

A  third  and  more  immediately  practical  method  of  meeting 
the  problems  arising  from  the  disintegration  and  confusion  exist- 
ing in  our  state  administration  systems  has  been  proposed  by 
another  writer.*  To  concentrate  responsibility,  to  prevent  com- 
missions and  boards  from  competing  with  one  another  for  legis- 
lative appropriations,  to  produce  that  economy  which  comes 
from  large  operations  in  the  purchase  and  distribution  of  supplies, 
and  to  bring  together  those  branches  of  administration  which 
are  technically  related,  the  various  state  administrative  offices 
may  be  grouped  into  the  following  executive  departments,  each 
under  the  head  of  a  responsible  officer  appointed  by  the  governor 
or  elected  by  the  legislature  or  chosen  by  popular  vote  —  prefer- 
ably appointed  by  the  governor:  — 

Department  of  state. 

Department  of  finance,  including  the  functions  of  treasurer 
and  comptroller. 

Department  of  justice. 

Department  of  education,  supervising  pubUc  schools,  colleges, 
Hbraries,  and  normal  schools. 

Department  of  commerce  and  labor,  including  factory  inspec- 
tion, collection  of  labor  statistics,  arbitration  and  concilia- 
tion, supervision  of  manufactures,  etc. 

Department  of  corporate  control:  over  railway,  gas,  telephone, 
street  car,  banking,  and  insurance  corporations. 

Department  of  agriculture,  having  charge  of  the  agricultural 
interests  and  fish  and  game  supervision. 

Department  of  pubHc  works,  supervising  highways,  parks, 
sewerage,  buildings,  pubUc  lands,  forests,  etc. 

Department  of  charities  and  corrections,  with  general  super- 

*  Mr.  White,  in  The  Political  Science  Quarterly,  Vol.  XVIII,  p.  655. 


The  State  Executive  Department  507 

vision  over  all  institutions  and  laws  affecting  defectives, 

delinquents,  and  dependents. 
Department  of  public  safety,  with  control  over  health  and 

poKce  authorities. 
However  desirable  it  might  be  to  group  the  numerous  branches 
of  a  state  administration  in  this  fashion  under  a  few  departmental 
heads  appointed  by  the  governor  and  responsible  to  him,  as  a 
matter  of  actual  fact  it  can  scarcely  be  said  that  we  have  begun 
the  reform.  A  review  of  governors'  messages  for  eight  years, 
1 900-1 907,  reveals  currents  in  the  direction  of  centralization, 
but  it  also  reveals  many  counter-currents.  Governor  Bates 
of  Massachusetts,  in  his  message  of  January  7,  1904,  favored 
fixing  responsibility  in  the  governor  by  giving  him  the  power  of 
appointing  the  heads  of  the  principal  departments.  Governor 
Garvin  of  Rhode  Island,  in  the  same  year,  recommended  a  similar 
policy.  Governor  Hughes  of  New  York,  in  his  inaugural  of 
1909,  made  a  plea  for  an  executive  power  commensurate  with 
executive  responsibility.^ 

In  the  South  and  West,  however,  we  find  governors  demand- 
ing an  extension  of  the  limits  of  the  elective  principle.  Governor 
Vardaman  of  Mississippi,  in  his  message  of  1904,  and  Governor 
Blanchard  of  Louisiana,  in  his  messages  of  1904  and  1906,  strongly 
advised  the  transformation  of  many  appointive  offices  into 
elective  offices.  Governor  Toole  of  Montana,  in  his  communi- 
cation to  the  legislature  of  January  5,  1903,  declared  that  "  the 
people  should  elect  all  important  officers  of  the  state  government. 
Under  the  law  as  it  now  stands,  the  governor  of  the  state  appoints 
the  state  examiner,  state  inspector,  state  coal  mine  inspector, 
steam  boiler  inspector,  commissioner  of  agriculture  and  labor, 
state  veterinarian,  registrar  of  the  state  land  office,  and  state 
land  agent  and  game  warden.  ...  It  is  the  system  that  is 
reprehensible  —  a  system  which  is  inconsistent  and  inharmonious 
with  the  genius  and  spirit  of  our  institutions  in  its  attempt, 
without  reason  or  necessity,  to  mingle  or  fuse  together  disagree- 
ing elements  of  a  democracy  and  a  monarchy.  In  short,  in  my 
opinion,  executive  appointments  or  patronage,  if  you  please, 
and  popular  sovereignty  are  antagonistic  elements  in  our  form 
of  government  and  ought  to  be  abandoned."  ^ 

'  Reprinted  in  part,  Readings,  p.  436. 

^  Digest  of  Governors'  Messages,  1903,  New  York  State  Library  Bulletin,  p.  29. 


5o8  American  Government  and  Politics 

The  same  diverse  tendencies  that  are  shown  by  the  governors* 
messages  are  revealed  by  a  careful  study  of  the  laws  creating  the 
more  important  state  offices  during  the  same  period,  1900-1907. 
They  may  be  summarized  as  follows: — 

Appointive  offices  made  elective.  Virginia:  treasurer,  secretary  of 
the  commonwealth,  superintendent  of  public  instruction  (1902). 
West  Virginia:  secretary  of  state  (1903).  Kansas:  state  printer 
(1906).  Louisiana:  supreme  court  justices,  registrar  of  the  land  office, 
commissioner  of  agriculture  and  immigration  (1906).  Alabama:  rail- 
road commission  (1907). 

Elective  offices  made  appointive.     California:    state  printer  (1907). 

Newly  created  elective  offices.^  Alabama:  Heutenant-governor,  com- 
missioner of  agriculture  and  industry  (1901),  state  fish  and  game  com- 
missioner (1907).  Vermont:  attorney-general  (1905).  Mississippi: 
insurance  commissioner  (1902),  commissioner  of  agriculture,  statistics 
and  immigration  (1906).  Texas:  commissioner  of  agriculture  (1907). 
Louisiana:  state  board  of  equalization  (1906).  Nebraska:  railroad 
commission  (1906).  Colorado,  Montana,  and  Oregon:  railroad  com- 
missions (1907).     Maine:    state  auditor  (1907). 

Newly  created  appointive  offices.^  CaHfornia,  Nevada,  South  Dakota: 
state  engineers  (1907).  Maryland:  state  auditor  (1902).  Nevada: 
state  auditor  (1907).  Indiana,  Washington,  Wisconsin,  and  Ohio: 
state  railroad  and  pubHc  service  commissions  (i  905-1 906).  Michigan, 
Nevada,  New  Jersey,  New  York,  Pennsylvania,  and  Vermont:  state 
railroad  and  pubUc  service  commissions  (1907). 

A  survey  of  this  table  shows  that  the  movement  towards  a 
transformation  of  appointive  into  elective  offices  is  confined  to 
the  southern  and  western  states,  where  the  machine  processes 
of  modern  life  and  their  institutional  results  are  not  so  fully  de- 
veloped as  in  the  northern  and  eastern  states.  In  the  South  or 
West  are  also  to  be  found  the  greater  number  (all  but  two)  of 
the  newly  created  elective  offices,  while  the  most  important  new 
appointive  offices,  the  public  service  commissions,  have  been 
estabUshed  in  the  middle  and  eastern  states. 

The  Removal  Power  in  State  Administration 

The  governor  has  no  general  power  of  removal  like  that  en- 
joyed by  the  President  of  the  United  States.     Not  only  do  we 
discover  a  great  variety  of  practices  among  the  several  common- 
'  In  some  cases,  transformation  of  older  ofl&ces. 


The  State  Executive  Department  509 

wealths,  but  in  each  state  we  find  different  methods  of  removal 
applied  to  officers  of  equal  rank  as  well  as  officers  of  different 
grades.  In  almost  any  commonwealth  one  may  find  three  or 
more  methods  of  removal. 

The  first  method  is  that  of  impeachment.  Many  state  con- 
stitutions provide  that  any  civil  officer  of  the  state  may  be 
impeached;  others  make  all  executive  officers  liable  to  im- 
peachment; and  still  others  especially  enumerate  the  officers 
who  may  be  impeached.  The  causes  of  impeachment  vary, 
but  crime,  misdemeanor,  treason,  bribery,  drunkenness,  mal- 
feasance, gross  immorality,  extortion,  neglect  of  duty,  in- 
competency, and  misconduct  are  among  those  enumerated  in 
various  constitutions.  South  Carolina,  however,  assigns  no 
causes  for  impeachment  whatever,  but  leaves  the  matter  to  the 
legislature. 

The  process  of  impeachment,  in  general,  follows  that  pre- 
scribed by  the  Constitution  of  the  United  States:  the  lower 
house  of  the  state  legislature  initiates  the  proceedings,  and  the 
senate  acts  as  a  court  of  trial,  sometimes  in  conjunction  with 
one  or  more  justices  of  the  state  supreme  court  —  for  example, 
in  New  York  the  judges  of  the  highest  court  of  the  state  (the  court 
of  appeals)  are  associated  with  the  senate  in  trying  cases  of 
impeachment.  Nebraska  has  a  somewhat  curious  method  of 
impeachment  by  a  joint  session  of  the  legislature  and  trial  by 
the  judges  of  the  supreme  court.  "The  senate  and  house  of 
representatives  in  joint  convention,"  runs  the  Nebraska  con- 
stitution, "shall  have  the  sole  power  of  impeachment,  but  a 
majority  of  the  members  must  concur  therein.  Upon  the  enter- 
tainment of  a  resolution  to  impeach  by  either  house  the  other 
house  shall  at  once  be  notified  thereof  and  the  two  houses  shall 
meet  in  joint  convention  for  the  purpose  of  acting  upon  such 
resolution  within  three  days  of  such  notification.  A  notice  of 
an  impeachment  of  any  officer  other  than  a  justice  of  the  supreme 
court  shall  be  forthwith  served  upon  the  chief  justice  by  the 
secretary  of  the  senate,  who  shall  thereupon  call  a  session  of  the 
supreme  court  to  meet  at  the  capital  within  ten  days  after  such 
notice  to  try  the  impeachment." 

k  The  effect  of  an  impeachment  is  generally  to  remove  the 
offender  from  office  and  to  disqualify  him  from  holding  any 
state  office;  but  any  person  impeached,  whether  convicted  or 


510  American  Government  and  Politics 

not,  is  liable  to  trial  and  punishment  for  his  offence  in  the  ordi- 
nary courts  of  law. 

A  second  method  of  removal  is  by  a  resolution  of  the  state 
legislature.  This  method  is  often  provided  for  the  removal  of 
judges  and  judicial  officers.  For  example,  in  New  York,  judges  of 
the  court  of  appeals  (the  highest  court  of  the  state),  and  justices 
of  the  supreme  court  may  be  removed  by  concurrent  resolution 
of  both  houses  of  the  legislature,  two-thirds  of  all  the  members 
elected  to  each  house  concurring  therein;  and  all  other  judicial 
officers,  excepting  certain  minor  officers,  may  be  removed  by 
the  senate  on  the  recommendation  of  the  governor,  two-thirds 
of  the  members  of  the  senate  concurring  in  the  action;  but  in  all 
cases  an  opportunity  to  be  heard  must  be  afforded  the  defendant. 

The  third  method  of  removal  is  by  the  governor  and  the  senate. 
This  is  the  common  practice  in  New  York,  where  nearly  all  the 
chief  state  officers  and  members  of  commissions  are  appointed 
by  the  governor  and  the  senate  and  removable  by  their  joint 
action. 

The  fourth  method  of  removal  is  by  the  governor  alone;  but 
this  power  is  not  very  extensively  granted  by  our  state  consti- 
tutions. In  several  states — for  example,  Colorado,  Maryland, 
Illinois,  Nebraska,  and  Pennsylvania  —  he  may  remove  those 
officers  whom  he  appoints.  "The  governor  shall  nominate," 
runs  the  Colorado  constitution,  "and  by  and  with  the  consent 
of  the  senate  appoint  all  officers  whose  offices  are  established 
by  this  constitution  or  which  may  be  created  by  law  and  whose 
appointment  or  election  is  not  otherwise  provided  for,  and  may 
remove  any  such  officer  for  incompetency,  neglect  of  duty,  or 
malfeasance  in  office."  In  New  York,  the  governor  may  suspend 
the  state  treasurer  during  a  recess  of  the  legislature;  he  may 
also  remove  the  superintendents  of  pubHc  works  and  of  prisons, 
members  of  the  pubhc  service  commission,  and  some  local 
officers,  including  district  attorneys,  county  treasurers,  sheriffs, 
mayors,  etc. 

The  fifth  method  of  removal  is  by  the  courts.  In  a  few  in- 
stances the  judges  of  the  higher  courts  may  remove  prosecuting 
attorneys,  minor  judicial  officers,  and  minor  county  and  town 
officers.  For  example,  the  constitution  of  Oregon  provides 
that,  "pubUc  officers  shall  not  be  impeached;  but  incompetency, 
corruption,  malfeasance,  or  deUnquency  in  office  may  be  tried 


The  State  Executive  Department  511 

in  the  same  manner  as  criminal  offences  and  judgment  may  be 
given  of  dismissal  from  office  and  such  further  punishment  as 
may  have  been  prescribed  by  law."  ^ 

A  sixth  method  —  recall  on  petition  of  25  per  cent,  of  the 
voters — was  authorized  by  a  constitutional  amendment  adopted 
in  Oregon  in  1908. 

The  State  Civil  Service 

Very  early  in  our  history,  state  offices,  Hke  the  offices  at  Wash- 
ington, fell  under  the  sway  of  the  spoils  system.  It  became  the 
common  practice  for  any  party,  on  defeating  its  rival,  to  oust 
from  the  state  offices  even  all  the  employees  whose  duties  were 
purely  clerical.  An  official  investigation  in  New  York  into  the 
methods  of  appointment  and  removal  prevaiHng  in  1884  led  to 
the  conclusion  that  poHtical  considerations  controlled  almost 
exclusively  all  appointments;  that  the  partisan  service  of  the 
a^^omtee,  either  past  or  expectant,  was  the  reason  for  his  ap- 
pointment; that  the  pubUc  welfare  was  only  a  nominal  factor 
in  selecting  employees;  that  the  most  meritorious  persons  were 
deterred  from  entering  public  service;  that  the  character  of  the 
service  was  lowered  by  the  patronage  system;  that  the  public 
officers  having  the  power  to  make  appointments  were  burdened 
and  embarrassed  by  the  pressure  upon  them  for  spoils;  and  that 
public  officers  imperilled  their  positions  by  any  independent 
or  non-partisan  action. 

New  York  led  the  way  in  civil  service  reform  by  passing,  in 
1883,  a  civil  service  law  providing  for  a  commission  authorized 
to  cooperate  with  the  governor  in  preparing  rules,  classifying 
the  state  civil  service,  and  conducting  the  examinations  for  the 
positions  to  be  filled  by  competition.^  Other  states  were  slow 
to  follow  the  example  of  New  York,  even  in  a  tentative  way. 
At  the  present  time  Massachusetts  and  Wisconsin  are  the  only 
commonwealths  besides  New  York  that  have  adopted  the  merit 
system  on  a  large  scale  for  state  and  local  officers.  In  1907  the 
civil  service  reformers  were  only  able  to  report  that  the  merit 
system  had  made  the  following  principal  gains:  ^  in  New  York, 

^The  constitutions  of  many  states  vest  in  the  legislatures  the  power  of 
providing  the  methods  by  which  inferior  officers  may  be  removed. 
2  This  commission  made  the  investigation  mentioned  above. 
^For  municipal  civil  service,  below,  p.  597. 


512  American  Government  and  Politics 

Massachusetts,  and  Wisconsin  for  the  state  service;  in  Illinois 
for  the  state  charitable  institutions;  in  Indiana  for  certain  public 
institutions,  such  as  the  hospitals  for  the  insane;  and  in  Colorado 
and  some  other  commonwealths  for  certain  state  institutions.^ 

The  state  civil  service  laws  follow,  in  general,  the  model  of 
the  national  law.  They  provide  for  the  division  of  public 
offices  into  two  groups:  the  classified  and  the  unclassified. 
The  unclassified  service  includes  all  offices  filled  by  election 
or  by  the  legislature  or  by  the  governor  and  senate,  and  certain 
other  specified  offices.  The  classified  service  comprises  all  other 
positions,  which  are  subdivided  into  three  groups:  the  com- 
petitive, the  non-competitive,  and  the  exempt.  The  competitive 
group  includes  such  officers  as  clerks,  copyists,  stenographers, 
cashiers,  civil  engineers,  bank  examiners,  expert  accountants, 
and  the  hke.  The  offices  in  this  group  are  filled  by  examinations 
or  promotions  and  transfers. 

The  civil  service  laws  require  all  examinations  to  be  practi- 
cal in  their  character  and  to  relate  to  such  matters  as  will  fairly 
test  the  relative  capacity  and  fitness  of  persons  examined  to 
discharge  the  duties  of  the  service  which  they  seek  to  enter. 
For  the  various  places  requiring  technical  skill,  —  such  as  the 
positions  of  factory  inspector,  health  officer,  civil  engineer, 
chemist,  and  expert  accountants,  —  special  examinations  in  the 
respective  branches  are  given;  and  in  no  case  is  reliance  placed 
solely  on  book  knowledge.  The  persons  who  are  successful  in 
the  examinations  are  grouped  according  to  the  services  which  they 
seek  to  enter  and  arranged  in  the  order  of  their  respective  grades. 
Whenever  a  vacancy  occurs,  the  appointing  officer  must  choose 
froni  the  three  names  highest  on  the  roll  of  candidates  for  tHe 
particular  service. 

The  non-competitive  class  includes  those  minor  employees 
whom  it  is  impracticable  to  include  in  the  competitive  class, 
such  as  bakers,  carpenters,  stone-cutters,  and  picture-framers. 
Appointments  to  the  non-competitive  class  are  made  after  non- 
competitive examinations  conducted  according  to  rules. 

In  the  exempt  class  are  the  deputies  of  the  principal  executive 
officers,  the  chief  clerks,  and  skilled  and  unskilled  laborers  not 
included  in  the  other  classes. 

^Twenty -fourth  Report  of  the  United  States  Civil  Service  Commission,  pp. 
163  ff. 


The  State  Executive  Department  513 

The  civil  service  laws,  as  a  rule,  provide,  furthermore,  that 
removal  must  not  be  made  for  political  reasons,  but  only  for  in- 
competence or  insubordination.  In  case  of  removal,  the  employee 
affected  usually  has  the  right  to  be  heard  in  his  own  behalf. 

In  the  state  of  New  York,  the  administration  of  the  civil  ser- 
vice law  is  in  the  hands  of  a  state  commission  composed  of  three 
members,  not  more  than  two  of  whom  may  be  adherents  to  the 
same  political  party,  appointed  by  the  governor  and  the  senate. 
In  conjunction  with  the  governor,  this  commission  has  devised 
rules  governing  the  civil  service  and  planned  examinations  for 
the  different  branches  of  the  service.  It  is  the  duty  of  the  com-* 
mission  to  prescribe  and  enforce  rules  for  carrying  the  civil 
service  act  into  effect,  to  keep  records  of  its  proceedings,  make 
investigations,  and  report  on  the  state  of  the  civil  service  and  the 
conduct  of  officials  under  the  law,  and  to  com.pel  the  attendance 
of  witnesses  whenever  required  for  an  investigation.^ 

In  spite  of  the  desirabiHty  of  getting  rid  of  the  partisan  con- 
trol in  fining  public  offices,  there  is  no  doubt  that  there  are  some 
grave  objections  to  the  present  civil  service  methods.  As  Gov- 
ernor Black  of  New  York  pointed  out,  in  his  message  of  1897, 
experience,  character,  tact,  and  even  muscle  may  be  of  more 
importance  in  some  cases  than  a  fraction  of  a  per  cent  in  an 
examination  in  geography,  and,  therefore,  the  discretion  of  the 
appointing  power  should  not  be  entirely  subordinated  to  the 
merit  system.  An  attempt,  however,  to  carry  this  idea  into 
effect  by.  a  law  providing  that  no  more  than  fifty  per  cent  should 
be  given  to  merit,  and  that  the  remainder  of  the  rate  (representing 
"fitness")  should  be  given  by  the  appointing  officer  or  some  per- 
sons designated  by  him  —  that  is,  an  attempt  to  make  room  for 
"experience,  character,  tact,  and  even  muscle"  —  led  to  a  disor- 
ganization of  the  civil  service  and  the  introduction  of  the  old 
partisan  methods;  and  it  was  shortly  abandoned  on  the  urgent 
recommendation  of  Governor  Roosevelt. 

The  requirement  that  removal  can  be  made  only  on  definite 
charges,  which  the  removing  officer  must  substantiate,  undoubt- 
edly results  in  keeping  in  the  pubhc  service  a  large  number 
of  incompetent  and  inefficient  employees  who  would   not  be 

*  In  its  twenty-fourth  Report  for  the  year  1907,  pp.  72-75,  the  commission 
showed  that  in  the  state  service  there  were  9509  employees,  of  whom  851 
were  unclassified,  626  exempt,  3092  competitive,  and  4940  non-competitive. 

2L 


514  American  Government  and  Politics 

retained  in  similar  private  employment  for  a  single  day.  If, 
however,  removals  can  be  made  wholesale,  the  result  is  the  re- 
introduction  of  the  spoils  system,  which  would  bring  into  the 
civil  service  very  probably  just  as  many  inefficient  and  incom- 
petent employees. 
^  Another  objection  to  the  civil  service  system  is  the  rule  which 
requires  the  heads  of  the  different  branches  of  administration 
to  select  even  important  subordinates  from  the  list  of  persons 
examined.  It  is  often  urged  that  where  a  place  is  somewhat 
confidential  in  character  or  involves  fiduciary  responsibility,  the 
appointing  officer  should  be  allowed  to  choose  some  one  in  whom 
\  he  has  confidence  as  a  result  of  personal  knowledge.  Heads  of 
departments,  therefore,  are  generally  bringing  great  pressure 
to  bear  upon  the  civil  service  commission  to  secure  the  exemption 
of  large  numbers  of  employees  from  the  operation  of  the  merit 
system. 

On  this  point  the  New  York  civil  service  commission  ob- 
served, in  1906,  that  the  practicability  of  filUng  positions  of 
trust  and  responsibility  through  competition  had  been  fully 
demonstrated.  While  appointing  officers  feel  embarrassment  at 
times  in  the  limitations  imposed  by  the  law  upon  their  freedom 
of  choice,  they  recognize  that  the  results  are  in  the  main  bene- 
ficial, and  that  the  conditions  with  these  restrictions  wholly 
removed  would  be  anything  but  helpful  to  the  public  service. 

An  inquiry  addressed  by  the  president  of  the  New  York  com- 
mission to  the  several  state  and  county  officers  as  to  their  ex- 
perience with  appointees  selected  from  the  eUgible  lists  "brought 
frank  and  interesting  replies.  None  advocate  the  rescinding 
of  the  law  or  returning  to  the  spoils  system;  a  few  criticise  the 
law  or  its  administration,  or  point  out  specific  instances  where 
competition  has  failed.  Others  make  suggestions  for  the  im- 
provement of  methods,  but  the  great  majority  bear  testimony 
to  the  efficiency  of  the  law  and  to  the  wholesome  effect  upon  the 
pubUc  service  of  the  enforcement  of  the  rule  of  competition."  ^ 

Within  recent  years  the  civil  service  commission  of  New  York 
has  endeavored  to  improve  the  public  administration  in  several 
ways.  In  1906,  it  held  a  conference  of  the  civil  service  commis- 
sioners of  the  various  localities  of  the  state  for  the  purpose  of 

*  Report  of  the  New  York  Civil  Service  Commission  (1906),  p.  10. 


The  State  Executive  Department  515 

cultivating  an  esprit  de  corps  among  the  officials,  promoting  a 
higher  degree  of  efficiency  in  the  administration  of  the  law, 
and  energizing  all  branches  of  the  civil  administration  in  the 
state.  Delegates  from  twenty-nine  different  municipahties 
and  representatives  of  the  national  Civil  Service  Commission, 
a  civil  service  reform  society,  and  two  organizations  of  civil 
service  employees  were  present;  ^  and  all  manner  of  concrete 
problems  relating  to  their  particular  duties  were  frankly  dis- 
cussed by  experts  of  large  experience.  Another  plan  for  im- 
proving the  state  of  public  service  was  adopted  by  the  New  York 
commission,  in  1905,  when  it  began  the  practice  of  making 
periodical  examinations  into  the  work  of  municipal  civil  service 
commissions  throughout  the  commonwealth.  These  investi- 
gations have  not  only  exposed  serious  abuses  but  have  stimu- 
lated local  commissions  to  an  improvement  of  their  methods. 

The  relation  of  the  organizations  of  civil  service  employees  to  the  public 
presents  some  very  complex  problems. 


CHAPTER  XXV 

THE   STATE  LEGISLATXJRE 

The  legislature  should  occupy  a  high  position  in  the  esteem 
of  the  citizens  of  a  commonwealth,  for  in  it  are  made  the  laws 
which  most  vitally  affect  their  lives  and  property.  UnHke  the 
Congress  of  the  United  States,  the  state  legislature  is  not  re- 
stricted to  the  exercise  of  certain  powers,  but  enjoys  every  right 
and  authority  which  is  not  expressly  denied  to  it  by  the  Con- 
stitution of  the  United  States  or  the  constitution  under' which 
it  is  erected.  It  has  control  over  the  whole  domain  of  civil 
law;  that  is,  it  lays  down  the  rules  governing  contracts,  real 
and  personal  property,  inheritance,  corporations,  mortgages, 
marriage  and  divorce,  and  other  civil  matters.  It  defines  crime; 
that  is,  it  prescribes  those  actions  of  the  citizen  which  are  to 
be  punished  by  fine  or  imprisonment  or  death.  It  touches  the 
property  of  the  citizen  not  only  by  regulating  its  use,  but  also 
by  imposing  upon  it  a  burden  of  taxation.  Finally,  it  has  control 
over  that  vast  domain  known  as  the  police  power,  under  which 
it  makes  regulations  concerning  pubUc  health,  morals,  and  wel- 
fare, devises  rules  for  the  conduct  of  business  and  professions, 
and  in  other  ways  restrains  the  Hberty  of  the  citizen  to  do  as  he 
pleases. 

When  one  looks  at  this  vast  range  of  power  and  then  turns 
to  the  history  of  the  state  legislatures,  he  is  astounded  at  the 
decline  in  public  esteem  which  they  have  suffered  within  recent 
years.  They  have  too  often  been  corrupt,  negligent ^  and  waste- 
ful. They  have  in  many  instances  made  laws  for  the  benefit 
of  private  persons  and  corporations  and  bartered  away  charters 
and  franchises;  and  they  have  even  gone  so  far  in  some  states 
as  to  repudiate  portions  of  the  pubHc  debt.  These  charges  are 
not  based  upon  mere  hearsay  evidence.  The  discreditable  record 
of  many  of  our  state  legislatures  is  written  in  the  constitutions 
of  the  states,  and  described  more  fully  in  the  debates  of  the 

Si6 


The  State  Legislature  517 

conventions  which  framed  tfose  constitutions.  In  fact,  the 
legislative  history  of  the  nij^teenth  century  is  the  history  of 
a  steady  reduction  in  the  power  of  the  legislature.  Convention 
after  convention  has  exhausted  its  ingenuity  in  devising  new 
restrictions  on  its  power  for  evil.  For  example,  the  constitutional 
conventions  of  Pennsylvania  held  in  1837  and  in  1873  were,  to 
a  considerable  extent,  devoted  to  the  task  of  providing  some 
way  to  prevent  a  renewal  of  the  corrupt  actions  on  the  part  of 
the  legislature  which  had  discredited  that  body  with  the  people 
of  the  commonwealth.^  Likewise  the  constitutional  convention 
of  Kentucky,  held  in  1890,  gave  serious  attention  to  discovering 
methods  for  checkmating  the  legislature.  "It  is  a  well-known 
fact,"  said  Mr.  Carroll,  during  the  debates  in  that  convention, 
"  that  one  of  the  prime  causes  for  calling  this  convention  was  the 
abuses  practised  by  the  legislative  body  of  this  state;  and  I 
venture  the  assertion  that,  except  for  the  vicious  legislation  and 
the  local  and  special  laws  of  all  kinds  and  character  passed  by 
the  legislatures  that  have  met  in  Kentucky  for  the  past  twenty 
years,  no  proposition  to  call  a  constitutional  convention  could 
ever  have  received  a  majority  of  the  votes  of  the  people  of 
Kentucky."  ^ 

On  comparing  our  present  state  constitutions  with  the  con- 
stitutions of  the  eighteenth  century,  we  find  this  feeling  of  dis- 
trust recorded  in  numerous  precise  restrictions  on  the  exercise 
of  the  legislative  power.  As  we  have  seen,  the  governor  has 
been  given  the  veto,  primarily  for  the  purpose  of  preventing 
misappropriation  of  funds,  and  hasty  and  corrupt  legislation. 
To  reduce  still  further  the  power  of  the  legislatures  for  evil, 
some  constitutions  have  restricted  their  sessions  to  fifty  or  sixty 
days;  and  the  old  practice  of  annual  sessions  has  been  almost 
entirely  abandoned.  Special  and  local  laws,  once  the  chief 
source  of  log-rolling  and  corrupt  bargaining,  have  been  for- 
bidden except  under  stringent  safeguards.  Furthermore,  a  large 
number  of  legislative  matters  relating  to  education,  taxation, 
and  corporations  have  been  treated  in  several  state  constitutions 
so  that  they  have  grown  in  bulk  and  look  very  much  Uke  statute 
books.  This  has  been  largely  due  to  the  behef  on  the  part  of 
the  constitution-makers  that  the  legislatures  could  not  be  trusted 

^Readings,  p.  84.  ^ Ibid.,  p.  445. 


51 8  American  Government  and  Politics 

to  do  their  duty.  Even  the  procedure  in  the  legislative  houses 
is,  in  part,  prescribed  in  the  constitution  for  the  purpose  of 
securing  regularity  and  pubUcity  in  the  passage  of  statutes. 
A  great  number  of  states,  as  we  have  seen,  have  gone  so  far  as 
to  estabUsh  a  complete  system  of  initiative  and  referendum, 
thus  taking  the  ultimate  legislative  power  entirely  out  of  the 
hands  of  the  legislature. 

This  experience  has  had  a  most  unhappy  effect  upon  the  atti- 
tude of  the  people  toward  their  representatives.  It  has  caused 
many  advocates  of  honest  and  efficient  government  to  turn  to 
the  executive  of  the  state  rather  than  to  the  law-making  body; 
and  it  has  brought  the  citizens  to  look  with  more  or  less  contempt 
upon  their  representatives  in  the  legislature.  Indeed,  this  at- 
titude of  criticism  and  ill-will  has  gone  entirely  too  far.  Too 
much  stress  has  been  laid  upon  the  sensational  exposures  which 
have  in  so  many  instances  discredited  the  representative  branch 
of  our  state  government.  As  Professor  Reinsch  has  pointed  out, 
the  most  superficial  acquaintance  with  our  legislatures  will 
"  reveal  the  fact  that  they  are  fairly  representative  of  the  Ameri- 
can people  and  that  there  is  in  them  a  great  deal  of  honest  effort 
to  grapple  with  the  difficult  problems  of  legislation,  misguided 
though  this  effort  may  be  at  times,  for  lack  of  authentic  informa- 
tion, and  thwarted  by  certain  vicious  arrangements  in  our  poUti- 
cal  systems."^ 

The  Structure  of  the  Legislature 

The  general  term  appUed  to  the  representative  branch  of  the 
state  government  is  "the  state  legislature";  but  the  technical 
name  for  that  body  varies  from  state  to  state.  In  about  one- 
half  of  the  commonwealths  it  is  known  as  "  the  general  assembly  " ; 
in  a  few  states  as  the  "legislative  assembly";  and  in  New  Hamp- 
shire and  Massachusetts  as  "  the  general  court."  All  of  the  states 
call  the  upper  house  of  the  legislature  the  senate;  and  in  most  of 
them  the  lower  house  is  known  as  the  house  of  representatives, 
though  in  some  states,  including  New  York,  it  bears  the  name  of 
the  assembly,  and  in  a  few  others  that  of  the  house  of  delegates. 

In  determining  the  number  of  members  of  the  legislature,  our 
constitution-makers  have  arrived  at  no  concensus  of  opinion. 

^  Reinsch,  American  Legislatures,  p.  128. 


I 


The  State  Legislature  519 

Massachusetts,  with  a  population  of  2,805,346  inhabitants  (1900), 
has  40  members  in  the  upper  house  and  240  in  the  lower 
house;  New  York,  —  the  most  populous  state  in  the  Union, — 
containing,  in  1900,  7, 2 68,894 inhabitants,  has  51  senators  and  150 
assemblymen.  According  to  Professor  Dealey,  twenty-one  states, 
varying  in  population  from  one  to  three  millions,  have,  on  the 
average,  40  senators  and  115  representatives  each.  In  a  word, 
there  is  little  or  no  positive  effort  to  establish  an  exact  relation 
between  the  number  of  representatives  and  the  population; 
but  experience  has  shown  that  it  is  wise  to  have  the  number 
prescribed  by  the  constitution  of  the  state  in  order  to  prevent 
the  legislature  from  increasing  its  own  size  for  poUtical  purposes. 

All  of  our  state  legislatures  are  divided  into  two  houses. 
Theoretically  speaking,  there  is  no  obvious  reason  why  there 
should  be  an  upper  house  in  the  state  legislature.  The  House 
of  Lords  in  England,  the  Bundesrath  in  Germany,  and  the  Senate 
of  the  United  States  are  to  be  accounted  for  by  the  fact  that 
some  provision  was  made  for  the  representation  of  the  certain 
interests  which  could  not  be  merged  with  those  reflected  in  the 
lower  chamber.^  The  members  of  the  upper  house  of  the  Ameri- 
can state  legislature  are  chosen  by  popular  vote;  they  do  not, 
like  the  House  of  Lords,  represent  the  landed  interests  and  the 
clergy;  neither  do  they  represent  any  large  and  important  sub- 
divisions as  do  the  members  of  the  German  Bundesrath  and 
the  United  States  Senate.  Many  provinces  in  Canada  have  single- 
chambered  legislatures,  but  the  constitution-makers  in  the 
United  States  have  believed  it  necessary  to  provide  a  second 
chamber  to  check  hasty  and  ill-considered  measures  and  to 
secure  a  more  careful  consideration  of  the  laws.  How  far  the 
original  purpose  has  been  realized  is  open  to  question. 

Our  state  senates  differ  from  our  lower  houses  in  the  following 
particulars:  the  senatorial  districts  are  always  larger  than  the 
districts  of  the  lower  house — often  the  senatorial  district 
embraces  three  assembly  districts;  the  senator  is  usually  chosen 
for  a  longer  ^rm  than  the  representative  —  in  New  York  for 
two  years,  while  the  assemblyman  enjoys  a  term  of  only  one  year; 
and  it  is  a  frequent  practice  also  to  have  the  state  senate,  like 

^  In  the  beginning  of  our  history,  however,  the  larger  property  interests 
were  especially  represented  in  the  state  senate.    See  above,  p.  81, 


520  American  Government  and  Politics 

the  Senate  at   Washington,  a  continuous  body  by  requiring 
only  partial  renewals  periodically.^ 

Accor(%g  to  the  modern  democratic  theory  of  equality,  the 
representatives  in  the  state  legislatures  should  be  apportioned 
among  districts  containing  substantially  an  equal  number  of 
inhabitants.  Several  of  our  state  constitutions  prescribe  that 
representation  shall  be  so  distributed,  and  that  after  each  census 
there  shall  be  a  reapportionment  in  order  to  correct  the  discrep- 
ancies caused  by  changes  in  the  populaJ:ion.^  This  principle 
has  been  recognized  by  about  one-third  of  our  states  scattered' 
throughout  the  Union,  including  commonwealths  as  far  apart 
as  Massachusetts  and  CaUfornia,  Washington  and  Tennessee. 

About  one-third  of  the  states  provide  for  general  distribution 
of  representation  on  the  basis  of  population,  with  certain  minor 
concessions  to  local  divisions.  Alabama,  for  example,  provides 
that  each  county  shall  have  at  least  one  member  in  the  house, 
regardless  of  the  number  of  its  inhabitants.  In  Florida,  there 
must  be  at  least  one  and  not  more  than  three  members  from 
each  county  in  the  house,  and  under  this  provision,  in  1905, 
four  of  the  most  populous  counties  had  only  twelve  members, 
whereas  on  a  strict  population  basis  they  would  have  been 
entitled  to  eighteen.  The  constitution  of  New  York  likewise 
recognizes  the  county  as  the  unit  of  representation  by  providing 
that  each  one,  except  Hamilton,  shall  have  at  least  one  member 
in  the  assembly  —  the  lower  house;  and,  as  Professor  Dealey 
points  out,  this  requirement  plays  havoc  with  popular  repre- 
sentation, for  about  one-fifth  of  the  districts  fall  far  below  the 
ratio  estabhshed  by  dividing  the  total  population  of  the  state 
by  150  —  the  membership  of  the  lower  house.  Not  only  are 
the  smaller  counties  over- represented;  the  more  populous  counties 
are  under-represented. 

Another  exception  to  the  democratic  theory  of  equal  election 
districts  is  the  discrimination  made  in  most  of  our  state  con- 
stitutions against  the  cities  in  favor  of  the  rural  districts.  In 
the  state  of  New  York,  for  instance,  it  is  provided  that  no  county, 
no  matter  how  populous,  shall  have  more  than  one-third  of  all 
the  senators,  and  that  [no  two  counties,  adjoining  or  separated 

^  Bryce,  The  American  Commonwealth  (1909),  Vol.  I,  p.  482. 
'Indiana  apportions  representation  on  a  basis  of  the  number  of  males 
over  twenty-one  years. 


t  The  State  Legislature  521 

only  by  public  waters,  shall  have  more  than  one-half  of  all  the 
senators. 

In  several  of  our  states  this  discrimination  against  the  cities 
and  in  favor  of  units  of  local  government  has  led  to  abuses  in  rep- 
resentation almost  as  glaring  as  those  which  existed  in  England 
prior  to  the  reform  bill  of  1832.  Connecticut,  for  example,  dis- 
tributes the  members  of  the  lower  house  among  towns  and  cities, 
giving  one  or  two  members  to  each.^  This  system  works  a  gross 
inequahty:  thirty-four  of  the  most  populous  towns  and  cities 
have  sixty-eight  members  in  the  lower  house,  whereas  if  the 
distribution  were  made  on  the  basis  of  population  they  would 
be  entitled  to  186  members.  Again,  four  of  the  smallest  Con- 
necticut towns,  with  a  total  population  of  1567,  have  five  mem- 
bers; four  of  the  most  populous  cities,  containing  309,982  in- 
habitants, have  only  eight  members,  whereas  on  the  basis  of 
population  they  would  be  entitled  to  eighty-seven.  These 
inequalities  are  only  partially  atoned  for  by  the  fact  that  member- 
ship in  the  senate  is  distributed  on  the  basis  of  population. 

In  Vermont  also  we  find  remarkable  instances  of  "rotten 
boroughs."  ^  By  the  constitution  of  that  state,  which  cannot 
be  amended  without  the  concurrence  of  two  successive  legis- 
latures, each  town  is  entitled  to  one  and  only  one  representative 
in  the  lower  branch  of  the  legislature.  Ten  towns  with  1231 
inhabitants  —  3.6  per  cent  of  the  total  population  —  have  equal 
representation  with  ten  others  whose  population  is  93,936  — 
27.3  per  cent  of  the  whole.  Towns  having  one-half  the  total 
population  elect  only  15.8  per  cent  of  the  representatives.  Three 
towns  have  three  times  the  representation  of  one  city  which  has 
one  hundred  times  their  combined  population.  On  the  basis 
of  representation  .in  the  smallest  town,  the  largest  city  would 
choose  388  members,  or  142  more  than  the  entire  house.^ 

^  Dealey,  Our  State  Constitutions  (1907),  p.  80. 

2  Rhode  Island  was  long  famous  also  for  its  "  rotten  boroughs, "  but  an 
amendment  adopted  in  1909  provides  for  reforms. 

^  Some  legislation  may  possibly  be  traced  to  this  method  of  apportion- 
ment. Fees  for  liquor  licenses  go  to  the  state.  Certain  taxes  for  schools  and 
highways  are  paid  into  the  state  treasury  and  redistributed  among  the 
several  towns  on  bases  other  than  that  of  taxable  wealth.  Extra-legal 
methods  of  remedying  the  inequalities  of  the  system  may  possibly  be  apphed, 
however,  through  the  medium  of  the  party  convention,  recruited  on  the 
basis  of  party  votes  cast  at  the  preceding  election.     In  1902  the  RepubUcan 


522  American  Government  and  Politics 


Strange  to  say,  these  violations  of  the  democratic  principle 
of  equaUty  in  representation  do  not  seem  to  incur  any  serious 
opposition  on  the  part  of  the  people  —  probably  owing  to  the 
tenacity  with  which  the  rural  districts  cUng  to  their  special 
privileges  and  also  to  the  general  indifference  shown  to  con- 
stitutional questions  by  the  electorates  of  the  great  urban  centres. 
On  account  of  the  general  practice  of  "gerrymandering," 
it  has  become  the  custom  to  fix  in  the  state  constitution  some 
general  principles  controlUng  the  distribution  of  representatives. 
This  custom  may  be  illustrated  by  the  New  York  constitution, 
which  fixes  the  number  of  the  senate  and  the  assembly,  provides 
for  a  reapportionment  every  ten  years,  and  prescribes  that  the 
senate  districts  shall  be  as  nearly  equal  as  possible,  compact 
in  form,  and  consisting  of  contiguous  territory.  It  further  stip- 
ulates that  in  making  senate  districts  no  county  can  be  divided, 
except  to  make  two  or  more  senate  districts  wholly  within  such 
county;  and  lays  down  the  limitation,  mentioned  above,  dis- 
criminating against  the  most  populous  counties.  It  prescribes 
that  each  county,  with  one  exception,  shall  have  at  least  one 
member  in  the  assembly,  and  places  the  apportionment  of 
assemblymen  in  counties  entitled  to  two  or  more  members  in 
the  hands  of  the  board  of  supervisors,  or  the  common  council.* 
It  also  provides  that  each  assembly  district  must  be  wholly 
within  a  spnate  district,  and  that  under  no  consideration  may  a 
township  or  city  block  be  divided.  To  give  the  citizen  a  remedy 
against  gerrymandering,  the  constitution  explicitly  states  that 
a  legislative  apportionment  law  is  subject  to  review  by  the  court 
of  appeals  at  the  suit  of  any  citizen. 
.    Only  a  few  states  in  the  Union  have  departed  from  the  ancient 

I  practice  of  electing  members  of  the  legislature. by  single  districts. 

'  In  Illinois,  a  system  of  minority  representation  has  been 
in  force  since  the  adoption  of  the  constitution  of  1870.  The 
law  provides  that  the  house  of  representatives  shall  consist  of 

party,  to  insure  the  election  of  its  state  ticket,  felt  compelled  to  promise  the 
submission  of  the  repeal  of  the  prohibitory  law  to  a  referendum.  When  the 
legislature  met,  the  house  of  representatives  without  division  voted  for  sub- 
mission. On  the  referendum  the  repeal  was  passed,  though  the  voting  dis- 
closed a  majority  of  eighty  towns  opposed.  For  this  statement  concerning 
Vermont  I  am  indebted  to  Professor  Thomas  Reed  Powell. 
*  In  each  city  embracing  an  entire  county. 


1 


The  State  Legislature  523 

three  times  the  number  of  the  members  of  the  senate;  that  three 
representatives  shall  be  elected  in  each  senatorial  district  at 
the  regular  biennial  election;  and  that  in  the  election  of  repre- 
sentatives each  qualified  voter  may  cast  as  many  votes  for  one 
candidate  as  there  are  representatives  to  be  elected,  or  may  dis- 
tribute his  votes  or  equal  parts  thereof  among  the  several  candi- 
dates as  he  sees  fit.  The  three  candidates  standing  highest  on 
the  list  after  the  votes  are  counted  are  declared  to  be  elected. 

Mr.  B.  F.  Moore  has  made  a  careful  study  of  the  working  of 
this  system  of  minority  representation  and  has  arrived  at  certain 
important  conclusions.^  He  shows  that  in  actual  practice  the 
system  almost  always  secures  a  minority  party  representative 
in  every  district,  although  it  by  no  means  works  out  propor- 
tionately for  all  of  the  smaller  parties.  He  demonstrates  that 
the  system,  furthermore,  does  away  with  many  of  the  evils  and 
gross  inequahties  of  the  gerrymander.  He  cites,  for  example, 
that,  in  1894,  21,783  votes  were  required  for  each  Democratic 
member  elected  to  the  lower  house  of  the  legislature  of  New  York 
while  each  Republican  member  had  only  6341  votes  to  his  credit 
—  that  is,  taking  averages.  He  also  shows  that  in  Michigan  in 
the  same  year  the  Repubhcans  with  a  vote  of  237,215  elected 
99  members  to  the  lower  house  of  the  legislature,  while  the 
Democrats  with  130,823  votes  secured  but  one  representative. 
He  then  turns  to  Illinois.  It  required  9089  RepubUcan  or 
35,889  Democratic  votes  to  elect  a  state  senator  in  1906,  while 
under  the  cumulative  system  applied  to  the  lower  house  the 
averages  for  the  same  year  were  substantially  equal,  each 
Republican  representative  averaging  12,970  votes  and  each 
Democratic  representative  14,268  votes.  His  general  conclusion 
is  that  "while  the  house  vote  shows  some  variation  and  can 
scarcely  be  regarded  as  ideal,  nevertheless  it  has  none  of  those 
glaring  inequalities  so  frequently  prevalent  as  the  result  of  the 
inherent  injustice  of  the  majority  system  combined  with  the 
consummation  of  political  art  in  juggUng  district  boundary 
lines." 

On  other  questions  Mr.  Moore  was  unable  to  come  to  such 
precise  conclusions.     With  regard  to  whether  cumulative  voting 

^  B.  F.  Moore,  The  History  of  Cumulative  Voting  and  Minority  Represen- 
tation in  Illinois,  University  of  Illinois  Studies,  1909. 


524  American  Government  and  Politics 

increases  or  diminishes  the  power  of  party  organization,  a  variety 
of  conflicting  opinions  was  found  among  men  of  broad  political 
experience.  A  number  maintained  that  the  system  had  no 
effect  whatever  on  party  organization,  but  a  still  larger  number 
contended  that  the  influence  of  the  party  machine  had  been 
decidedly  increased  owing  to  the  necessity  of  controlling  the 
distribution  of  the  three  votes  placed  in  the  hands  of  each  voter. 

With  regard  to  the  still  more  important  question  of  the  in- 
fluence of  the  cumulative  system  on  the  legislative  personnel, 
Mr.  Moore  found  almost  insuperable  obstacles  in  the  way  of 
securing  convincing  conclusions.  On  this  point  one  member 
of  the  Illinois  legislature  said,  "I  would  say  in  general  that  they 
are  probably  more  representative  men;"  while  another  member 
of  the  legislature  declared,  ''The  worst  candidate  stands  the 
best  chance  of  election,  as  appreciating  the  fact  that  he  is  weak, 
the  *  plumping '  is  oftentimes  overdone  to  even  up  the  vote." 
After  all,  concludes  Mr.  Moore:  "The  strongest  recommenda- 
tion for  the  cumulative  system  is  the  fact  that  at  all  times  it 
secures  representation  for  a  minor  party,  thus  insuring  a  strong 
minority  in  the  lower  house.  An  ever  present  minority  also 
serves  to  check  the  tendency  to  corruption  which  almost  in- 
variably follows  when  one  party  has  for  a  considerable  time  a 
large  majority  in  the  legislature."  ^ 

With  regard  to  the  term  ^enjoyed  by  members  of  state  legis- 
latures there  is  a  general  tendency  to  increase  the  length.  More 
than  one-half  of  the  states  elect  senators  for  a  period  of  four 
years;  about  one- third  fix  the  term  at  two  years;  while  Massa- 
chusetts and  Rhode  Island  alone  retain  the  old  practice  of  annual 
elections.  In  all  but  a  few  states  the  term  of  the  members  of 
the  lower  house  is  placed  at  two  years;  Alabama,  Louisiana,  and 
Mississippi  have  fixed  the  term  at  four  years,  while  Massachusetts, 
New  York,  New  Jersey,  and  Rhode  Island  retain  the  old  custom 
of  annual  elections. 

^The  cumulative  system  in  IlHnois  did  not  originate  in  any  abstract 
theories  of  representation,  but  in  the  fact  that  the  Democrats  had  an  over- 
whelming majority  in  the  southern  part  of  the  state  and  the  Republicans  an 
overwhelming  majority  in  the  northern  part  of  the  state,  and  that  the  antago- 
nism between  the  two  sections  produced  much  unnecessary  ill  feeling  in 
Illinois  politics.  It  was  hoped  to  break  up  the  solid  South  and  the  solid 
North  of  the  state  by  securing  minority  representation  in  each  section. 

^See  table  below,  p.  527,  note. 


The  State  Legislature  525 

A  serious  attempt  was  made  in  the  New  York  constitutional 
convention  of  1894  to  increase  the  term,  but  without  avail. 
On  that  occasion,  Mr.  Bush  argued  against  any  change,  declaring 
that  it  was  to  the  best  interest  of  the  state  to  have  the  members 
of  the  assembly  returned  to  the  people  every  year  in  order  that 
the  latter  might  pass  upon  their  acts.  "You  take  away  the 
dread,"  he  said,  "that  the  average  member  of  the  assembly  has 
that  his  constituents  at  home  are  watching  his  acts  and  will 
pass  upon  them  at  the  coming  election  and  you  will  take  away 
one  of  the  greatest  incentives  to  right  action."  ^ 

Experience  and  practice,  however,  seem  to  argue  against  this 
position.  When  a  member  is  elected  for  one  year,  unless  he  has 
already  served  one  or  more  terms  in  the  legislature,  he  hardly 
has  time  to  learn  the  rules  of  the  body  before  his  period  of  service 
expires;  and  if  he  contemplates  reelection,  he  must  devote  a 
considerable  portion  of  his  energies  every  year  to  "nursing" 
his  district.  As  everybody  knows,  effective  work  in  a  legis- 
lature can  only  be  done  by  a  man  of  experience  —  notwithstand- 
ing the  best  intentions.  A  district  can  be  effectively  repre- 
sented only  by  a  man  who  is  able  to  accompHsh  results. 

The  legislator  must  have  the  qualifications  of  a  voter  of  the 
commonwealth,  and  several  states  fix  an  age  Kmit,  differentiat- 
ing between  members  of  the  senate  and  of  the  lower  house.  An 
examination  of  the  composition  of  our  state  legislatures  by  Dr. 
S.  P.  Orth  shows  that  they  are  fairly  representative  of  the  diverse 
elements  of  our  population.^  In  the  senate  of  Vermont,  in  1904, 
for  example,  there  were  nine  farmers,  four  lawyers,  four  physicians, 
thirteen  merchants;  three  were  college  graduates,  seven  had 
received  training  in  professional  schools,  seven  had  been  edu- 
cated in  academies,  and  thirteen  had  never  gone  beyond  public 
schools.  Of  these  men,  twenty-seven  had  had  considerable 
previous  political  experience;  one  had  been  township  clerk  for 
thirty-five  years;  another,  during  his  career,  had  held  most  of  the 
town  ofl&ces;  and  some  had  had  both  legislative  and  official  ex- 
perience. In  the  Vermont  lower  house  of  the  same  year  there  were 
252  members;  of  these  123  were  farmers,  six  were  lawyers,  ten 
were  physicians,  forty-eight  were  merchants  and  manufacturers, 

^Revised  Record  of  the  Convention,  Vol.  Ill,  p.  1021. 
'S.  P.  Orth,  "Our  State  Legislators,"  Atlantic  Monthly,  Vol.  XCIV, 
pp.  728  ff.    Parts  of  the  article  are  simply  condensed  in  the  above  text. 


526  American  Government  and  Politics 

three  were  bankers,  five  were  preachers,  six  were  insurance 
writers,  two  were  hotel  proprietors,  three  were  Hverymen,  fourteen 
were  laborers  or  artisans,  and  six  apparently  had  no  occupation 
except  that  of  general  poUtician  and  office-seeker.  "  One  member, 
says  Mr.  Orth,  "made  his  daily  bread  by  occasional  speculation." 
One  member  was  a  lawyer,  farmer,  and  breeder.  Another  was 
town  clerk  and  treasurer  and  clerk  in  a  general  store.  But  the 
most  versatile  of  this  coterie  of  men  was  one  who  professed  to 
be  at  the  same  time  a  furniture  dealer  and  undertaker  and  miller 
and  dealer  in  grain  and  feed.  Of  the  members  of  the  lower 
house  seven-eighths  had  held  pubhc  office,  some  of  them  for 
fifteen,  eighteen,  twenty,  and  thirty-six  years;  but  strange  to  say, 
—  and  this  is  a  significant  fact,  —  only  nineteen  of  the  total 
number  of  senators  and  representatives  had  ever  sat  in  a  former 
legislature.  The  great  majority  of  them,  therefore,  had  had  no 
practical  experience  for  legislative  work. 

Mr.  Orth  has  taken  Ohio  as  a  type  of  a  populous  state  in  which 
manufacturing,  mining,  and  agriculture  are  nearly  of  equal  im- 
portance. In  the  senate  of  thirty-three  members,  fourteen  were 
lawyers,  and  there  were  nine  business  men,  two  teachers,  two 
editors,  two  farmers,  and  one  physician;  one-third  were  college' 
men,  another  third  had  received  «ome  training  in  academic, 
normal,  and  professional  schools,  while  the  remainder  had  com- 
pleted their  education  in  the  common  schools.  Only  one-half 
of  them  had  been  office-holders  and  twenty-seven  of  them  had 
had  no  previous  legislative  experience  whatever.  Of  the  no 
representatives  in  the  lower  house  of  the  Ohio  legislature,  about 
one- third  were  lawyers,  one-fifth  farmers,  one-sixth  business  men; 
and  there  were  ten  teachers,  five  physicians,  three  editors,  one 
preacher,  ten  laborers  and  artisans,  two  auctioneers,  a  com- 
mercial traveller,  a  law  school  student,  a  court  crier,  a  music 
composer  "with  a  national  reputation,  being  the  author  of  many 
works  on  music  and  over  100  piano  compositions,  many  of 
which  had  proven  very  popular."  Of  the  members  of  the  lower 
house  two-thirds  had  never  held  office,  while  three-fourths  had 
never  had  any  legislative  service. 

A  further  analysis  of  our  state  legislatures  shows  that  the 
features  prominent  in  Vermont  and  Ohio  are  quite  common  in 
the  other  states.  The  members  are  of  the  same  miscellaneous 
character:  lawyers,  farmers,  merchants,  and  representatives  of 


The  State  Legislature 


527 


that  large  portion  of  the  American  population  that  earns  its 
livelihood  by  a  variety  of  methods.  Our  legislatures  are  there- 
fore not  expert  law-making  bodies,  and  it  is  often  difficult  to 
find  in  many  of  them  even  a  small  group  of  men,  prepared 
by  training  and  experience,  to  imdertake  legislative  work  oi 
the  highest  quality. 

On  the  other  hand,  the  representative  character  of  our  legisla- 
tors is  apparent.  While  the  working  class  has  relatively  few  of 
its  own  spokesmen,  all  of  the  other  miscellaneous  groups  in  society 
are  certainly  fairly  well  represented.  The  legislature,  therefore, 
comes  closely  into  touch  with  the  real  interests,  prejudices,  and 
customs  of  the  people;  and  this  is  the  most  important  feature  of 
representative  government. 

In  all  the  states  members  of  the  legislature  are  paid.^     Several 


Pay  and  Terms  of  Members  of  Legislatures 


States  and 
Territories 

Salaries  of 
Members, 
Annual  or 
PER  Diem, 

WHILE  IN 

Session 

Terms  op 

Members, 

Years 

States  and 
Territories 

Salaries  of 
Members, 
Annual  or 
PER  Diem, 

WHILE  IN 

Session 

Terms  of 

Members, 

Years 

Sena- 
tors 

Repre- 
sent- 
atives 

Sena- 
tors 

Repre- 
sent- 
atives 

Alabama 

Arizona 

Arkansas 

California 

Colorado 

Connectic 

Delaware 

Florida 

Georgia 

Hawaii 

Idaho  . 

Illinois 

Indiana 

Iowa    . 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachu. 

Michigan 

Minnesota 

Mississipp 

Missouri 

Montana 

lit '.     ". 

setts  '. 

i    '.     '. 

$4  per  diem 
$4  per  diem 
$6  per  diem 
$1,000  term 
$7  per  diem 
$300  ann. 
$5  per  diem 
$6  per  diem 
$4  per  diem 
$400  ann. 
$5  per  diem 
$1,000  ann. 
$6  per  diem 
$550  session 
$3  per  diem 
$5  per  diem 
$5  per  diem 
$300  ann. 
$5  per  diem 
$750  ann. 
$800  ann. 
$1,000  ann. 
$400  session 
$S  per  diem 
$12  per  diem 

4 
2 

4 
2 
2 
2 
2 
2 
2 
2 
2 
2 
2 
2 
2 
2 
2 
2 
4 
2 
2 
I 
2 
2 
4 
2 
2 

Nebraska      .     . 
Nevada    .     .     . 
New  Hampshire 
New  Jersey  .     . 
New  Mexico 
New  York     .     . 
North  Carolina  . 
North  Dakota  . 
Ohio 

Oklahoma     .     . 
Oregon     .     .     . 
Pennsylvania     . 
Porto  Rico    .     . 
Rhode  Islan  1    . 
South  Carolina  . 
South  Dakota   . 
Tennessee     .     . 
Texas  .     .     .     . 
Utah    .     .     .     . 
Vermont  .     .     . 
Virginia    .     .     . 
Washington  .     . 
West  Virginia    . 
Wisconsin     .     . 
Wyoming      .     . 

$5  per  diem 
$10  per  diem 
$200  ann. 
$500  ann. 
$4  per  diem 
$1,500  ann. 
$4  per  diem 
$5  per  diem 
$1,000  ann. 
$6  per  diem 
$3  per  diem 
$1,500  ses'n 
$S  per  diem 
$5  per  diem 
$200  ann. 
$5  per  diem 
$4  per  diem 
$5  per  diem 
$4  per  diem 
$4  per  diem 
$500  session 
$5  per  diem 
$4  per  diem 
$500  ann. 
$S  per  diem 

2 
4 
2 

2 
2 
2 
2 
2 
2 
2 
I 
2 
2 
2 
2 
2 
2 
2 
2 
2 
2 
2 

^  Nearly  all  the  states  and  territories  pay  mileage  also. 
Almanac  for  19 10,  p.  598. 


From  the  World 


528  American  Government  and  Politics 

of  the  constitutions  prescribe  the  amount;  and  other  constitu- 
tions, which  leave  the  determination  of  the  compensation  to  the 
legislature,  forbid  any  increase  during  the  term  of  service.  Some 
commonwealths  provide  a  definite  annual  salary,  as  for  example 
New  York,  which  pays  each  member  of  the  senate  and  the  as- 
sembly $1500  per  annum.  Other  states  make  a  per  diem  allow- 
ance, combining  this  with  a  limitation  on  the  length  of  the  session 
or  at  least  on  the  number  of  days  for  which  payment  can  be  drawn. 
Oklahoma,  for  example,  has  provided  that  the  members  of  the 
legislature  shall  receive  $6  per  day  for  a  term  of  sixty  days  and 
only  $2  per  day  after  the  expiration  of  that  period. 

It  was  for  a  long  time  a  tradition  of  our  politics  that  legisla- 
tures ought  to  assemble  frequently,  but  our  experience  with  legis- 
lative achievements  has  led  many  of  the  states  to  regard  the 
legislature  more  or  less  as  a  nuisance.  The  old  rule  provided  for 
annual  sessions,  but  it  is  now  followed  only  in  Georgia,  Massachu- 
setts, New  Jersey,  New  York,  Rhode  Island,  and  South  Carolina. 
The  great  majority  of  states  have  provided  for  biennial  sessions, 
while  two  states,  Alabama  and  Mississippi,  have  quadrennial 
sessions,  but  both  find  special  sessions  necessary,  especially  to 
deal  with  financial  measures. 

The  length  as  well  as  the  frequency  of  legislative  sessions  is 
subject  to  constitutional  Hmitations.  Several  states  have  fixed 
a  definite  period  —  varying  from  forty  to  ninety  days  —  dur- 
ing which  the  legislature  may  remain  in  session.  Others  have 
sought  to  check  legislative  labors  by  reducing  wages  after  the 
expiration  of  a  certain  time. 

Indeed,  it  seems  that  our  constitutions  have  gone  too  far  in  the 
direction  of  curtaihng  the  legblative  session.^  The  legislative 
reference  librarian  of  Indiana  recently  declared  that  the  limited 
biennial  session  of  sixty-one  days  in  that  state  placed  the  legisla- 
tors under  a  severe  nervous  strain  to  accompHsh  the  absolutely 
necessary  work.     The  argument  in  favor  of  this  restriction  isfl 

'  A  recent  student  of  legislative  matters,  Mr.  Ernest  Bruncken,  proposes 
to  abolish  the  time  limit  on  the  legislative  session  and  divide  it  into  two  parts 
—  the  first  for  the  introduction  of  bills  and  reference  to  committees,  and  the 
second  part  (after  an  adjournment  for  a  substantial  period,  say  three  months) 
for  the  discussion  and  passage  of  such  bills,  the  introduction  of  new  bills 
in  the  latter  part  being  forbidden  except  under  very  strict  control.  Political 
Science  Review  for  May,  1909. 


I 


The  State  Legislature  529 

that  where  the  time  at  the  disposal  of  the  legislators  is  limited, 
their  attention  will  necessarily  be  devoted  to  only  the  most  im- 
portant matters,  while  the  local  and  special  legislation  and  the 
pet  schemes  of  "the  pohticians"  will  be  perforce  excluded  from 
consideration.  At  all  events,  it  is  urged,  this  limitation  of  the 
time  will  reduce  the  quantity  of  the  unwise  legislation  from 
which  our  states  have  long  suffered. 

Nevertheless,  this  seems  to  be  the  wrong  way  of  improving  the 
quality  of  our  laws.  In  a  short  session,  where  there  are  so  many 
members  devoid  of  legislative  experience,  a  good  portion  of  the 
time  is  consumed  in  getting  down  to  work;  and  no  opportunity 
can  be  afforded  for  hearing  favorable  and  adverse  interests  on 
important  measures.  Thus  it  seems  that,  while  we  may  reduce 
the  quantity,  it  will  be  well-nigh  impossible  to  improve  the  quality, 
by  limiting  too  closely  the  time  at  the  disposal  of  our  legislators. 

The  Powers  of  State  Legislatures 

A  hundred  years  ago,  a  commentator  on  our  state  constitutions 
would  have  given  Httle  time  to  a  consideration  of  the  powers 
of  the  legislature;  but  to-day  any  examination  of  our  state  legisla- 
ture at  work  must  be  prefaced  by  an  account  of  the  constitutional 
limitations  under  which  it  must  operate. 

At  the  outset,  of  course,  there  are  those  limitations  laid  down  in 
the  federal  Constitution,^  which  are  common  to  all  states,  for- 
bidding the  legislature  to  emit  bills  of  credit,  coin  money,  pass 
ex  post  facto  laws  or  laws  impairing  obligations  of  contract, 
or  to  make  or  enforce  laws  abridging  the  privileges  and  immunities 
of  United  States  citizens,  or  to  dejmve  persons  of  life,  liberty,  or 
property  without  due  process  of  law,  or  to  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws.  It  has 
been  pointed  out  above  how  the  Fourteenth  Amendment  to  the 
federal  Constitution  is  frequently  called  into  play  to  check 
our  state  legislatures.  At  all  times,  therefore,  they  must  look 
well  into  their  laws  in  order  to  shape  them  in  such  form  as  to 
escape  the  wide  sweep  of  this  provision. 

The  general  limitations  imposed  on  legislatures  by  our  state 
constitutions  fall  into  six  groups:  In  the  first  place,  there  is  the 
bill  of  rights  guaranteeing  jury  trial,  religious  freedom,  and  liberty 

^  See  above,  chap.  xxii. 

2M 


530  American  Government  and  Politics 


1 


of  press  and  speech,  securing  to  the  citizen  the  ancient  right  to  the 
writ  of  habeas  corpus,  and  forbidding  the  legislature  to  take 
private  property  for  public  use  without  compensation.  In  the 
second  place,  there  is  usually  a  group  of  provisions  controlling 
the  legislature  in  deaUng  with  corporations,  forbidding  it  to  grant 
special  charters  of  incorporation  or  special  privileges  of  any  kind. 
The  third  group  of  Umitations  control  the  financial  power  of  the 
legislature,  restrict  its  capacity  for  incurring  debts,  compel  it  to 
make  provision  for  paying  the  interest  and  ultimately  the  princi- 
pal of  all  money  borrowed  for  pubHc  purposes,  and  secure  public- 
ity for  financial  measures  during  their  passage.  In  the  fourth 
place,  the  constitution  provides  the  framework  of  the  state 
government,  defines  the  terms  and  powers  of  the  various  ofiicials, 
and  prescribes  the  qualifications  for  voters,  thus  placing  these 
matters  beyond  the  reach  of  the  legislature.  In  the  fifth  place, 
the  state  constitution  generally  lays  down  some  fundamental 
principles  with  regard  to  local  government,  public  institutions, 
and  education. 

There  is  finally  (6)  the  very  important  group  of  restrictions 
on  the  power  of  the  legislatures  to  pass  special  and  local  laws. 
All  statutes  fall  into  two  classes :  (a)  general  or  public  laws ;  and  (b) 
special  or  local  laws.  The  former  apply  equally  to  all  persons 
or  special  classes  of  persons  throughout  the  state.  For  example, 
an  act  regulating  the  time  of  opening  the  polls  on  elections 
throughout  the  state  would  be  a  general  law.  Likewise  a  statute 
compelling  all  manufacturers  to  maintain  certain  sanitary  stand- 
ards in  their  shops  would  be  a  general  law.  A  special  or  local  law, 
on  the  other  hand,  is  one  applying  to  some  particular  person  or 
corporation  or  locaKty  —  township,  county,  or  city;  for  example, 
a  law  requiring  a  county  to  build  certain  bridges  and  lay  out 
a  certain  highway  would  be  a  local  or  special  law.  An  act 
exempting  some  city  or  profession  or  corporation  from  the  state 
taxes  regularly  imposed  upon  all  citizens,  would  be  a  special  law. 
It  can  be  seen  at  a  glance  how  easily  corrupt  and  pernicious  legis- 
lation could  be  enacted  in  favor  of  local  and  special  interests  by  a 
legislature  having  no  restraint  upon  its  power. 

The  right  to  pass  such  laws  has  produced  two  unfortunate 
results  wherever  it  has  been  freely  given  to  a  state  legislature.^ 

'  The  following  bills  (selected  from  a  long  list)  introduced  into  the  Albany 
legislature  in  igio  give  some  idea  of  the  character  of  an  enormous  mass  of 
local  business  which  must  be  dealt  with  under  the  present  conditions:  — 


The  State  Legislature  531 

In  the  first  place,  it  has  led  localities  and  corporations  to  exert 
powerful  influences  to  secure  special  favors  and  has  introduced 
lobbying,  bribery,  and  log-rolling.  In  the  second  place,  the 
amount  of  special  and  local  legislation  pushed  by  interested 
parties  in  every  legislature  is  so  great  as  to  obscure  the  more  im- 
portant public  measures,  and  to  occupy  the  time  of  the  members 
with  business  of  sHght  importance  to  the  pubHc  at  large.  Every 
legislator  is  usually  under  heavy  pressure  from  his  constituents 
and  from  corporations  in  his  locality  to  secure  the  enactment  of 
special  laws.  Thus  the  time  of  the  individual  members  and  of 
the  entire  legislature  is  largely  consumed  with  such  matters. 

This  has  doubtless  had  ;a  decided  effect  on  the  quaUty  of  men 
wilhng  to  enter  the  state  legislatures.  Very  few  men  of  high 
standards  and  quaUfied  to  deal  with  great  pubHc  questions  are  will- 
ing to  waste  their  time  in  trying  to  get  an  iron  bridge  over  Duck 
Creek  in  Posey  township  or  in  securing  some  special  favors  for  a 
local  railroad  corporation.  Such  business  appeals,  as  a  rule,  to 
men  of  small  caUbre  and  also  to  men  whose  integrity  is  not  of  the 
best. 

Practical  experience  with  the  unrestrained  power  of  the  legisla- 
ture to  pass  local  and  special  laws  has  led  our  state  constitution- 
makers  to  adopt  a  variety  of  Hmitations  on  this  type  of  legislative 
activity.  A  common  form  of  such  limitation  is  a  provision  to  the 
effect  that  no  special  laws  shall  be  passed  in  cases  which  can  be 
covered  by  a  general  law.  Another  method  is  to  enumerate  a 
large  number  of  subjects  with  regard  to  which  the  state  legisla- 
ture cannot  enact  special  legislation;  sometimes  the  constitution 
provides  some  twenty  or  thirty  such  topics,  including  regu- 
lation of  the  rate  of  interest  on  money,  granting  of  special  acts 
of  incorporation,  changing  county  seats,  remitting  fines,  and 
granting  divorces.^  A  third  way  of  providing  against  unwise 
local  legislation  is  to  classify  the  cities  into  two  or  more  groups, 
according  to  their  population,  and  compel  the  legislature,  in 

Senate  77.  Amendment  of  New  York  City  charter  authorizing  the 
board  of  estimate  and  apportionment  to  lay  out  sites  for  playgrounds  withm 
specified  area  in  Brooklyn. 

Senate  92.  Fixing  a  five-cent  fare  in  Brooklyn  from  Flatbush  Avenue  to 
Railroad  Avenue. 

Senate  182.    Legalizing  a  sewer  bond  issue  of  the  village  of  Depew. 

'  Readings,  p.  458.  • 


532  American  Government  and  Politics 

legislating  for  municipalities,  to  make  each  law  cover  one  or  more 
of  the  groups.  Thus,  for  example,  the  constitution  of  New  York 
provides  that  there  shall  be  three  classes  of  cities  according  to 
their  population.*  Other  state  constitutions  simply  declare  that 
special  and  local  laws  shall  not  be  passed  at  all.  However,  such 
a  provision  is  easily  evaded  by  the  legislature  by  a  simple  process. 
It  may  provide,  for  instance,  that  a  certain  law  shall  apply  to  all 
cities  of  over  200,000  inhabitants  within  the  state  when  there  is, 
as  a  matter  of  fact,  only  one  city  in  that  class;  and  this  practice 
has  been  upheld  by  the  courts. 

Another  check  on  local  legislation  is  the  device  of  giving  the 
community  affected  the  right  to  pass  upon  each  law  applicable  to 
it.  This  has  been  adopted  in  New  York  with  regard  to  special 
laws  affecting  cities.^  Still  another  device,  adopted  in  Vermont, 
New  York,  Oklahoma,  and  several  other  states,  is  to  require  the 
publication  of  any  proposed  special  law  in  a  newspaper  circulating 
in  the  locaUty  affected,  thus  enabling  the  citizens  to  take  action 
upon  the  measure  before  it  is  passed. 

The  effect  of  these  various  Umitations  has  undoubtedly  been  to 
reduce  the  quantity  of  local  and  special  legislation,  but  it  can 
hardly  be  said  that  the  problem  has  been  solved  satisfactorily.  A 
vast  amount  of  such  legislation  is  absolutely  necessary,  and 
where  the  Umitations  on  the  legislature  are  too  strict,  subterfuges 
of  one  kind  or  another  have  to  be  adopted.^  Certainly  much 
could  be  gained  by  giving  more  autonomy  to  localities. 

Legislative  Organization  and  Procedure 

In  organization  and  procedure  our  state  legislatures  follow,] 
quite  generally,  the  organization  and  procedure  of  Congress.     Inj 
taking  up  this  branch  of  state  government,  therefore,  we  en- 
counter the  party  system,  the  speaker,  and   the  committee,' 
just  as  in  Congress.     The  Ueutenant-govemor,  where  such  an] 
officer   is  provided  for,  generally  presides   in  the  state  senate] 
and  occupies  a  position  analogous  to  that  of  the  Vice-President 
at  Washington;  and  the  lower  house  of  the  legislature,  like  th( 
House  of  Representatives,  elects  its  own  speaker.    The  chif 
difference  between  the  two  legislatures  in  this  regard  is  due  to  the 

^  See  Readings,  p.  512.  ^  Ibid.,  p.  512. 

'  For  proposed  remedies,  Readings,  pp.  467  ff. 


The  State  Legislature  533 

fact  that  our  state  constitution-makers  are  not  willing  to  give  to 
the  legislature  the  same  freedom  in  conducting  business  that  is 
enjoyed  by  the  Congress  at  Washington.  There  is  frequently 
in  state  constitutions  a  group  of  limitations  designed  to  secure 
regularity,  pubHcity,  and  due  deUberation  in  the  discussion  of 
measures. 

At  the  very  outset  we  encounter  the  party  caucus  in  the  state 
legislature.  In  the  caucus  of  the  majority  party,  the  speaker  of 
the  lower  house  is  chosen;  .and  the  general  measures  to  be  carried 
by  the  legislature  are  hkewise  determined.  Here  it  is  that  party 
organization  gets  in  its  work.  Here  it  is  that  members  who, 
if  left  to  their  own  devices,  would  be  independent,  are  brought  to 
reaUze  that  practically  the  only  hope  for  securing  a  consideration 
of  their  own  measures  is  submission  to  the  general  policy  of  the 
party.  It  is  the  caucus  that  keeps  discipline  in  the  ranks;  and 
usually,  by  the  force  of  circumstances,  the  caucus  is  dominated  by 
a  small  and  experienced  group  of  legislative  workers.^ 

The  speaker  in  the  lower  house  of  the  state  legislature  is  nomi- 
nally chosen  by  that  body,  but,  as  we  have  seen,  in  reaHty  by  the 
caucus  of  the  majority  party.  Like  the  Speaker  at  Washington, 
he  enjoys  an  enormous  power  if  he  has  tact  and  the  capacity  for 
securing  it.  He  usually  appoints  the  committees,  and  by  a 
judicious  distribution  of  the  members,  he  is  able  to  secure  the  pre- 
dominance of  his  own  friends  on  every  important  committee. 

Owing  to  the  fact  that  a  large  number  of  the  members  are 
wholly  inexperienced  in  legislative  business,  the  speaker  is  often 
able  so  to  distribute  the  bills  among  committees  as  to  decide  the 
fate  of  measures.  He  usually  has  at  his  side,  like  the  Speaker  at 
Washington,  a  committee  on  rules,  or  perhaps  a  group  of  his 
followers  who,  acting  in  cooperation  with  him,  practically  deter- 
mine what  measure  shall  come  up  for  consideration.  However, 
it  can  hardly  be  said  that  the  speaker  in  the  average  state  legisla- 
ture enjoys  an  authority  over  the  house  comparable  to  that  en- 
joyed by  Mr.  Reed  or  Mr.  Cannon  at  Washington. 

^  Great  outcry  has  been  made  by  reformers  aejainst  the  caucus  system  and 
the  discipline  which  it  imposes  upon  members  of  the  legislature,  but  it  may  be 
doubted  whether  such  discipline  is  more  stringent  than  that  imposed  by  the 
cabinet  system  in  England.  However,  it  should  be  remembered  that  the 
men  who  dominate  the  party  caucus  in  the  state  legislature  are  not  respon- 
sible as  are  the  cabinet  officers  in  the  English  Parliament.  Lowell,  Govern- 
ment of  England,  Vol.  I,  p.  453. 


534  American  Government  and  Politics 

As  at  Washington,  a  great  deal  of  the  legislative  work  is  done 
by  committees.  The  rules  of  the  New  York  senate  (1908)  pro- 
vided for  the  following  committees:  finance,  judiciary,  affairs  of 
cities,  railroads,  canals,  commerce  and  navigation,  codes,  insur- 
ance, taxation  and  retrenchment,  banks,  forest,  fish  and  game 
laws,  internal  affairs  of  towns  and  counties,  military  affairs,  mis- 
cellaneous corporations,  public  education,  public  health,  penal  in- 
stitutions, revision,  affairs  of  villages,  agriculture,  printed  and 
engrossed  bills,  Indian  affairs,  trade  and  manufactures,  privileges 
and  elections,  public  printing,  roads  and  bridges. 

The  rules  of  the  lower  house  in  New  York  (1908)  provided  for 
the  following  committees:  ways  and  means,  judiciary,  general 
laws,  revision,  codes,  taxation  and  retrenchment,  canals,  affairs 
of  cities,  railroads,  commerce  and  navigation,  insurance,  banks, 
electricity,  gas  and  water  supply,  public  education,  internal 
affairs,  labor  and  industries,  excise,  affairs  of  villages,  fisheries 
and  game,  pubHc  printing,  public  health,  public  lands  and  for- 
estry, pubhc  institutions,  military  affairs,  soldiers'  home,  agricul- 
ture, claims,  charitable  and  religious  societies,  federal  relations, 
state  prisons,  privileges  and  elections,  trade  and  manufactures,  In- 
dian affairs,  rules,  printed  and  engrossed  bills,  unfinished  business.^ 

Legislative  committees,  of  course,  are  not  all  of  equal  impor- 
tance. Perhaps  first  in  the  list  ought  to  be  placed  the  committees 
which  deal  with  financial  measures,  commonly  known  as  the  com- 
mittee on  finance  in  the  senate  and  the  committee  on  ways  and 
means  in  the  house.  If  there  are  great  cities  in  the  state,  the 
committee  on  cities  is,  naturally,  high  in  rank.  The  committee 
on  the  judiciary  also  enjoys  great  power  because  it  often  has  re- 
ferred to  it,  under  the  cover  of  questions  of  constitutionality, 
important  measures,  such  as  primary  legislation  and  election 
laws.  In  addition,  it  frequently  has  to  review  amendments  to 
the  existing  statutes. 

It  is  the  business  of  a  legislative  committee  to  consider  carefully 
measures  referred  to  it,  and  to  hear  the  various  interests  for  and 
against  —  though  in  practice,  of  course,  only  a  few  bills  receive 
this  treatment.    The  law  of  New  York  makes  definite  arrange- 

^  The  senate  committees  are  appointed  by  the  president  of  the  senate,  and 
under  rules  of  the  assembly  the  speaker  appoints  all  committees,  except 
where  either  house  otherwise  orders. 


The  State  Legislature  535 

ments  for  committee  hearings.  It  provides  that  any  legislative 
committee  may  require  the  attendance  of  witnesses  in  the  state 
or  issue  a  commission  for  the  examination  of  witnesses  who  are  out 
of  the  state  or  are  unable  to  attend  the  committees;  any  person 
acting  as  a  witness  is  allowed  the  same  fees  that  are  paid  to  wit- 
nesses in  civil  actions  in  courts  of  record;  and  whenever  a  com- 
mittee is  instructed  by  resolution  of  either  house  to  undertake 
an  investigation  outside  of  the  city  of  Albany,  its  actual  and 
necessary  expenses  are  paid.  In  practice,  of  course,  the  hearings 
on  important  bills  are  attended  by  advocates  and  opponents 
who  are  not  regarded  as  witnesses  and  are  not  paid  for  their 
services. 

The  committee  system  in  the  Massachusetts  legislature  seems 
to  have  reached  the  highest  point  of  development.  "In  that 
state,"  says  Professor  Reinsch, "  committee  hearings  are  a  very  im- 
portant part  of  legislative  action.  Notice  of  all  hearings  is  given 
in  the  pubHc  press,  and  the  committee  meetings  are  well  attended, 
not  only  by  people  who  have  an  axe  to  grind,  but  by  citizens  of 
the  state  who  interest  themselves  in  legislative  reforms.  All  tes- 
timony brought  before  the  committees  is  carefully  weighed;  in 
fact,  the  legislature  and  its  committees  assume  rather  a  judicial 
attitude.  Petitions  are  brought  before  them,  testimony  is  given, 
arguments  are  made,  and  they  can  generally  decide  the  matter 
impartially  upon  the  basis  of  all  these  considerations."  ^ 

The  value  of  the  committee  system,  where  it  is  honestly  worked, 
is  undoubted.  It  enables  a  few  members  to  become  fairly  experi- 
enced in  some  particular  subject.  Through  the  system  of  hear- 
ings it  nof  only  gives  to  the  legislature  the  arguments  on  both 
sides  of  each  question,  but  it  partially  determines  the  extent  of 
the  public  demand  for  each  measure  by  bringing  the  legislature 
closely  in  touch  with  those  interests  and  groups  of  citizens  most 
vitally  affected  by  it.  It  enables  the  legislatures  to  adapt  their 
work  more  precisely  to  the  concrete  social  and  economic  condi- 
tions which  they  are  attempting  to  regulate.  Finally,  it  helps  to 
prevent  hasty  and  ill-considered  legislation.  On  the  other  hand, 
the  committee  system  has  its  disadvantages,  for  it  is  by  the  com- 
mittee that  good  measures  are  often  smothered  or  riddled  by 
amendments,  and  pernicious  measures  carried  through  the  legis- 
lature without  adequate  scrutiny. 

^American  Legislatures,  p.  174. 


536  American  Government  and  Politics 

The  actual  procedure  in  our  state  legislatures  it  is  difficult  to 
present  in  any  systematic  form.  The  rules,  it  is  true,  are  usually 
explicit  enough  as  they  appear  in  the  clerk's  manual,  but,  as  we 
have  seen  in  our  study  of  Congress,  the  formal  rules  are  not  always 
followed  in  practice.  There  are,  however,  certain  matters  con- 
nected with  the  procedure  which  can  be  put  down  in  a  fairly 
definite  manner. 

In  the  first  place,  there  are  generally  some  constitutional  limita- 
tions on  procedure.  It  is  often  provided  that  laws  must  always 
be  passed  in  the  form  of  bills;  and  that  each  bill  must  cover  only 
one  subject  expressed  clearly  in  the  title  in  order  to  prevent  the 
coupling  of  many  vicious  bills  with  a  good  one  or  to  prevent  the 
insertion  of  totally  distinct  matters.  There  are  commonly  some 
stipulations  to  the  effect  that  former  statutes  may  be  amended 
only  in  such  a  way  as  to  make  clear  the  exact  change  that  has 
been  made  in  the  law.  It  is  a  common  custom  to  require  three 
different  readings  of  every  measure  passed,  and  to  prohibit  the 
introduction  of  bills  after  the  expiration  of  a  certain  part  of  the 
session,  so  as  to  prevent  rushing  through  pernicious  measures 
during  the  closing  hours  of  the  session.  These  and  other  constitu- 
tional provisions  control  the  actual  operation  of  the  state  legisla- 
ture, and,  in  some  instances  at  least,  the  courts  will  enforce  them 
if  they  are  neglected  by  the  legislative  body.  Ordinarily,  however, 
we  must  admit,  with  Professor  Reinsch,  that  "the  observation 
of  the  rules  of  procedure  is  very  largely  dependent  upon  the  will 
and  purpose  of  the  majority  in  the  legislative  body.  The  leaders 
do  not  often  find  it  difficult  to  arrive  at  an  understanding  with 
the  minority  under  which  legislation  can  be  carried  on  largely 
by  common  consent.  This  lax  procedure  has  been  encouraged 
through  the  general  apathy  of  the  people  toward  the  state  legisla- 
tures." 

The  second  fairly  definite  group  of  rules  of  procedure  are  those 
designed  to  secure  pubHcity  in  the  consideration  of  measures. 
The  constitution  of  New  York,  for  instance,  provides  that  no  bill 
shall  be  passed  or  become  a  law  unless  it  shall  have  been  printed 
and  upon  the  desks  of  the  members  in  its  final  form  at  least  three 
calendar  legislative  days  prior  to  its  final  passage,  except  in  case 
the  governor  or  the  acting  governor  shall  have  certified  to  the 
necessity  of  its  immediate  passage;  at  the  last  reading  of  a  bill 
no  amendment  may  be  made;  the  question  upon  its  final  passage 


I 


The  State  Legislature  537 

must  be  taken  immediately  afterward,  and  the  yeas  and  nays 
entered  on  the  journal.^  The  rule  that  no  bill  shall  be  introduced 
during  the  last  few  days  is  also  intended  to  secure  pubUcity,  but 
it  is  commonly  nuUified  by  the  necessary  qualification  allowing 
such  an  introduction  of  measures  either  by  unanimous  consent 
or  by  the  consent  of  a  large  portion  of  the  members  of  the  house. 

To  give  some  concrete  idea  of  the  general  character  of  legisla- 
tive procedure  we  may  take  up  the  practice  of  a  well-ordered 
legislature.  A  bill  is  introduced  in  the  lower  house  by  any  one 
of  four  methods:  by  a  private  member  who  may  deposit  it  in  a 
box  near  the  speaker's  desk,^  by  the  report  of  a  committee,  on  the 
order  of  the  house,  or  by  a  messenger  from  the  senate.  At  the 
close  of  each  day's  session  the  bills  deposited  in  the  bill  box  are 
handed  to  the  speaker,  and  at  the  next  regular  session  the  speaker 
announces  the  introduction  of  the  bills  for  their  first  reading  and 
thereupon  refers  them  to  appropriate  committees  with  the  con- 
sent of  the  house. 

All  bills  after  their  first  reading  in  the  assembly  are  referred  to 
standing  or  select  committees  for  consideration  and  report.  If 
a  bill  is  favorably  reported  and  the  report  is  approved  by  the 
house,  the  bill  is  then  placed  on  the  order  of  second  reading. 
If  the  report  is  adverse  and  is  approved  by  the  house,  the  bill  is 
considered  rejected. 

When  a  bill  is  placed  on  the  order  of  second  reading,  it  is  then 
subjected  to  debate,  being  considered  section  by  section  —  unless, 
by  unanimous  consent,  it  is  advanced  to  the  third  reading. 
When  a  bill  passes  the  second  reading  and  is  ordered  to  the  third 
reading,  it  is  referred  to  the  committee  on  revision,  and  then  it 
goes  to  the  committee  on  engrossed  bills,  where  it  is  put  in  final 
form  and  laid  on  the  desk  of  the  members  three  days  before  the 
final  reading.  When  a  bill  is  ready  for  its  third  reading,  it  is 
placed  on  the  proper  calendar  and  taken  up  at  the  proper  time. 
Unless  there  is  a  demand,  the  bill  is  not  read  through.  If  some 
member  wants  to  reopen  debate  on  the  bill,  he  moves  to  strike 
out  the  enacting  clause. 

The  proceedings  in  the  senate  of  the  average  legislature  are 
very  much  Uke  those  in  the  house,  except  that  the  committee 

*  On  the  origin  of  this  provision,  see  Readings,  p.  466. 
'  The  member  may  also  rise  in  the  assembly  and  introduce  a  bill,  but  this 
practice  is  seldom  adopted. 


538  American  Government  and  Politics 

of  the  whole  sometimes  takes  the  place  of  the  order  of  the  second 
reading  as  conducted  in  the  house. 

To  prevent  unnecessary  delay  in  the  New  York  assembly, 
the  rules  provide  that  no  member  shall  speak  more  than  twice 
on  one  question,  without  leave  of  the  house;  and  furthermore  that 
no  member  shall  speak  more  than  fifteen  minutes  at  a  time  except 
with  the  consent  of  two-thirds  of  all  the  members  present. 
Debate  is  closed  by  the  motion  that  the  main  question  be  put, 
and  until  it  is  decided  this  motion  precludes  all  amendments  or 
debate.  In  the  senate,  when  any  bill,  resolution,  or  motion  has 
been  under  consideration  for  six  hours,  it  is  in  order  for  any  sena- 
tor to  move  the  closure,  and  such  motion  must  be  put  immediately. 
If  it  receives  the  approval  of  a  majority  of  the  senators,  the  vote 
is  thereupon  taken  upon  the  pending  question,  without  further 
debate,  except  that  any  senator  who  desires  to  do  so  is  per- 
mitted to  speak  on  the  measure  for  one-half  an  hour  at  most. 

Some  notion  of  the  practical  experience  of  legislators,  especially 
new  men,  can  be  gathered  from  the  following  somewhat  humorous 
account^  by  a  member  of  the  New  York  assembly:  "Before  I 
came  up  here  I  had  an  idea  that  a  legislator,  after  a  profound  study 
of  the  subject,  would  introduce  a  bill  with  a  few  words  that  would 
at  once  attract  the  attention  of  the  press  and  through  them  the 
pubhc.  Presently,  by  some  machinery  which  I  never  clearly 
understood,  the  bill  would  be  taken  up  in  its  turn  and  after  grave 
and  serious  argument  would  either  be  passed  or  defeated.  But  what 
really  happens  is  this.  You  sneak  up  back  of  the  desk  and  drop 
into  a  slot  your  bill,  which  half  the  time  you  don't  know  anything 
about  yourself,  because  either  your  boss,  or  your  senator,  or  some 
organization  in  your  district,  gave  it  to  you.  By  bothering  the 
clerk  next  day  you  can  find  out  what  committee  it  has  been  re- 
ferred to.  If  you  are  a  member  of  the  committee,  there  is  a  good 
chance  to  get  it  reported,  because  the  other  members  of  the  com- 
mittee want  your  vote  to  get  their  own  bills  out.  If  not,  you  are 
a  hundred  to  one  shot,  unless  your  senator  comes  over  and  sees 
Wadsworth  [the  speaker  of  the  assembly]  or  Merritt  [the  floor 
leader  of  the  majority]  about  it.  The  next  thing  you  do  is  to  ask 
for  a  hearing  on  the  bill.  You  find  out  who  is  the  chairman  and 
hunt  him  up.  When  he  sees  you  are  only  a  first-year  man,  he 
insists  in  mistaking  you  for  a  doorkeeper  or  messenger,  just  to 
^  New  York  Evening  Telegram,  February  25,  1908. 


J 


The  State  Legislature  539 

let  you  know  your  place.  After  you  get  that  straightened  out 
and  tell  him  what  you  want,  he  pulls  a  long  face  and  talks  about 
the  flood  of  bills  they  have  to  consider.  That's  all  you  can  do. 
If  the  committee,  or  rather  if  two  or  three  men  on  the  committee, 
are  willing  to  give  your  bill  a  chance,  you  may  get  it  out  after 
begging  like  a  college  president.  Once  on  the  calendar,  instead 
of  the  chairman  of  the  committee,  you  have  one  man,  Merritt,  the 
Republican  floor  leader,  to  convince  before  you  can  get  a  vote  on 
the  bill  at  all.  They  say  it's  even  worse  over  in  the  senate,  but 
it's  bad  enough  here.  All  a  new  assemblyman  is  good  for  is  to 
vote  as  he  is  told.  If  he  doesn't  do  that,  never  a  bill  of  his  will 
see  dayUght.  The  committee  holds  the  power  of  life  and  death 
over  a  bill,  and  Wadsworth  and  Merritt  hold  the  committee  in 
an  iron  grip." 

As  a  matter  of  plain  fact,  a  great  portion  of  our  legislation  is 
done  in  the  most  hasty  and  irregular  manner.  The  members  usu- 
ally waste  from  one-third  to  two-thirds,  if  not  more,  of  the 
session,  and  then  the  measures  are  rushed  through  during  the 
closing  hours  with  little  regard  to  the  actual  rules.  An  illumina- 
ting glimpse  of  real  procedure  is  given  by  the  following  extract 
from  a  pamphlet  prepared  by  the  lUinois  Legislative  Voters' 
League  of  1903:  "Consider  the  petty  annoyances  to  which  a 
decent  member  outside  the  '  organization '  may  be  subjected,  and 
the  methods  by  which  legitimate  legislation,  backed  by  him,  may 
be  blocked.  The  bill  goes  to  an  unfriendly  committee.  The 
chairman  refuses  to  call  the  committee  together,  or  when  forced 
to  call  it,  a  quorum  does  not  attend.  In  case  a  quorum  attends, 
the  point  may  be  raised  that  the  bill  is  not  printed,  or  the  chair- 
man may  fail  to  have  the  original  bill  with  him.  Action  may  be 
postponed  on  various  pretexts,  or  the  bill  may  be  referred  to  a 
subcommittee.  The  committee  may  kill  the  bill  by  laying  it  on 
the  table.  On  the  other  hand  the  committee  may  decide  that 
the  bill  be  reported  to  the  house  to  pass.  Then  a  common  practice 
is  for  the  chairman  to  pocket  the  bill,  delaying  to  report  it  to  the 
house  till  too  late  to  pass  it.  When  finally  reported  to  the  house, 
it  goes  on  the  calendar  to  be  read  a  first  time  in  its  order.  Then 
begins  the  advancing  of  bills  by  unanimous  consent,  without 
waiting  to  reach  them  in  order.  Here  is  where  the  organization 
has  absolute  control.  Unanimous  consent  is  subject  to  the 
speaker's  acuteness  of  hearing.     His  hearing  is  sharpened  or 


540  American  Government  and  Politics 

dulled  according  to  the  good  standing  of  the  objector  or  of  the 
member  pushing  the  bill.  If  one,  not  friendly  to  the  house '  organ- 
ization' wants  to  have  his  bill  considered  over  an  objection,  he 
must  move  to  suspend  the  rules.  The  speaker  may  refuse  to 
recognize  him,  or  may  put  his  motion  and  declare  it  carried  or  not 
carried  as  suits  his  and  the  organization's  desires.  So  the  pet 
bills  are  jumped  over  others  ahead  of  them  on  the  calendar, 
while  the  ones  not  having  the  backing  of  the  house  'organization' 
are  retired  farther  and  farther  down  until  their  ultimate  passage 
becomes  hopeless.  If  the  bill  of  the  independent  member 
reaches  a  second  reading,  it  may  be  killed  by  striking  out  the 
enacting  clause  or  by  tacking  on  an  obnoxious  amendment  that 
makes  it  repulsive  to  its  former  friends.  A  referendum,  requir- 
ing, not  a  majority  of  those  voting  on  the  bill,  but  a  majority  of 
all  the  votes  cast  at  the  election  to  adopt  it,  is  a  new  and  favorite 
method  of  shelving  a  bill  by  amendment.  To  carry  out  the  will  of 
the  organization,  the  speaker  declares  amendments  carried  or  the 
contrary  on  viva  voce  vote.  Demands  for  roll-calls  are  ignored 
by  him  in  violation  of  the  members'  constitutional  rights.  This 
is  called  'gavelling'  a  bill  through.  Formerly  the  gavel  was 
used  to  carry  through  political  measures  of  the  majority  party 
and  to  prevent  obstructive  and  dilatory  tactics  of  the  minority 
party.  By  a  gradual  growth  it  has  come  to  be  used  to  help  or 
defeat  legislation  in  which  the  organization  has  an  interest, 
although  the  majority  may  have  a  contrary  view.  What  the 
speaker  declares,  the  clerk  must  record,  and  what  the  clerk 
records,  no  court  will  set  aside." 

Faults  in  State  Legislation  and  Proposed  Remedies  * 

When  one  considers  the  enormous  mass  of  business  which  is 
transacted  by  our  state  legislatures,  —  even  where  long  sessions 
prevail,  —  principally  during  the  rush  of  the  closing  hours,  it  is 

*  A  recent  critic  of  American  methods  of  legislation,  Mr/Ernest  Bruncken, 
sums  up  (in  the  Political  Science  Review,  for  May,  1909)  the  evils  of  our 
excessive  legislative  activities  as  follows:  Owing  to  the  prolixity,  confusion 
and  constant  amendments  of  our  laws  it  is  almost  impossible  for  the  layman 
or  lawyer  to  say  what  the  law  is  on  any  subject;  the  legislatures,  in  drafting 
laws,  all  too  frequently  ignore  the  most  common  rules  of  adjudication  cm- 
ployed  by  courts;  there  is  a  constant  tendency  to  neglect  the  eflfect  of  any 
new  statute  upon  the  existing  body  of  law;   many  of  our  bills  are  drawn  by 


The  State  Legislature  541 

small  wonder  that  there  is  a  vast  amount  of  irregular,  hasty,  and 
pernicious  legislation.  Hon.  Alton  B.^  Parker  has  stated  that 
each  year  we  add  some  25,000  pages  to  our  statute  books,  whereas 
in  a  period  of  six  years  (1899-1905)  "the  English  parliament, 
legislating  for  the  need  of  forty-two  millions  of  home  population 
and  millions  of  dependents,  passed  an  average  of  only  forty-six 
general  and  two  hundred  and  forty  special  laws."  ^  Of  course,  it 
must  be  remembered  that  when  we  total  the  pages  of  statutes 
throughout  the  United  States,  we  have  many  duphcates,  for  all 
the  legislatures  are  compelled  to  cover  practically  the  same  sub- 
jects. However,  compare  Wisconsin  with  England.  During  the 
same  period,  the  Wisconsin  legislature,  meeting  biennially,  en- 
acted, for  a  population  of  two  million  inhabitants,  1801  laws,  or 
on  the  average  450  laws  a  session.  Professor  Dealey  has  esti- 
mated that  in  1901  our  state  legislatures  passed  13,584  laws;  in 
1903,  14,098  laws;  and  in  1905,  13,172  laws.  In  New  England, 
special  legislation  was  seventy-six  per  cent  of  the  total,  but  in 
other  states  where  such  legislation  is  more  restricted  it  formed 
but  twenty-eight  per  cent  of  the  total.  In  the  five  years  from 
1899  to  1904  the  total  number  of  acts  passed  by  American  legis- 
latures was  45,552,  of  which  only  16,320  were  public  laws. 

The  bad  quality  of  a  great  deal  of  our  state  legislation  may  be 
attributed  to  other  causes  than  to  haste  and  quantity.  Professor 
Freund  has  assigned  most  of  our  shortcomings  in  this  matter  to 
*the  following  causes:  first,  an  absence  of  responsibility,  due  to  the 
fact  that  any  member  of  the  legislature  may  introduce  as  many 
bills  as  he  pleases  without  assuming  any  responsibility  for  them, 
and  also  to  the  fact  that  the  governor  in  many  states  does  not 
have  suflftcient  time  at  the  close  of  the  session  to  consider  the  great 
mass  of  measures  placed  in  his  hands;  secondly,  the  lack  of  ex- 
pert advice,  much  of  our  legislative  work  being  done  by  inex- 
perienced men  unaided  by  technical  service;    and  thirdly,  the 

men  who  are  not  lawyers  and  do  not  have  even  the  most  elementary  knowl- 
edge of  legal  requirements;  the  practice  of  log-rolling  leads  to  the  passage 
of  countless  measures  without  any  adequate  scrutiny;  our  legislatures  are  so 
organized  and  conducted  as  to  prevent  the  discussion  and  detailed  considera- 
tion of  bills;  there  is  generally  little  or  no  attempt  to  unify  the  output  of  each 
legislative  session,  so  that  it  frequently  happens  that  two  bills  passed  on  the 
same  day  flatly  contradict  each  other. 

'  For  a  fuller  statement,  see  Readings,  p.  475. 


542  American  Government  and  Politics 

failure  to  confine  the  exercise  of  legislative  power  to  measures 
shown  by  long  experience  to  be  wise  and  prudent  though  tempo- 
rarily inconvenient  or  disappointing  in  the  production  of  immedi- 
ate results.^ 

Mr.  Bryce,  on  the  other  hand,  attributes  most  faults  of  our  state 
legislation  (i)  to  the  system  of  selection  by  party  conventions 
which  favors  the  entrance  of  bad  men  and  tends  to  shut  out  good 
men;  (2)  to  the  habit  of  restricting  the  choice  of  members  to  resi- 
dents in  the  electoral  district,  thus  excluding  much  of  the  best 
talent  in  the  state;  (3)  to  the  fact  that  the  capital  of  the  state  is 
frequently  a  small  town  removed  from  the  great  cities  of  the  state 
and  thus  sheltered  from  the  publicity  of  the  metropolis;  and 
(4)  to  the  fact  that  while  the  business  which  comes  before  the  leg- 
islature is  important,  it  fails  to  excite  much  interest  among  the 
people. 

Undoubtedly,  one  of  the  mo§t  serious  defects  in  our  state  legisla- 
tion is  due  to  the  want  of  technical  skill  in  drafting  the  laws  and 
to  the  improper  adjustment  of  amendments  to  the  existing  law. 
In  the  English  parHament  there  is  an  expert  bill  drafter,  a  high-sal- 
aried and  skilled  lawyer,  who  helps  to  give  the  laws  the  form  nec- 
essary to  accomplish  their  purpose  and  assists  in  fitting  them  to 
the  older  statutes;  but  in  the  United  States  most  of  our  laws  are 
drawn  up  in  a  haphazard  fashion  by  irresponsible  persons  in  and 
out  of  the  legislature.  Some  of  the  most  important  public  laws, 
designed  to  achieve  large  reforms  of  one  kind  or  another,  are 
drafted  without  remuneration  by  persons  outside  of  the  legisla- 
ture, interested  in  the  proposed  legislation.  Another  portion  of 
our  laws,  especially  those  affecting  private  interests,  are  drafted 
by  high-salaried  persons  in  the  employ  of  corporations,  and  while 
they  are  usually  wanting  in  none  of  the  technicalities  that  make 
for  the  accomplishment  of  their  purpose,  they  often  contain 
clauses  whose  full  import  is  only  understood  by  the  private  parties 
interested  in  them.  Other  bills  frequently  are  drafted  in  a  care- 
less fashion  by  private  members  who  are  entirely  without  any 
technical  legal  knowledge,  and  sadly  deficient  in  their  comprehen- 
sion of  the  plain  terms  of  the  English  language. 

Some  attempts  have  been  made  to  remedy  these  technical  de- 
fects. New  York,  for  example,  provides  by  statute  that  the  tem- 
porary president  of  the  senate  and  the  speaker  of  the  assembly 

*  Proceedings  of  the  American  Political  Science  Association  (1907),  p.  69. 


The  State  Legislature  543 

shall  appoint  a  number  of  competent  drafters  whose  duty  it 
shall  be,  during  the  session  of  the  legislature,  on  the  request 
of  either  house,  or  of  a  committee,  member,  or  officer  thereof, 
to  draw  bills,  examine  and  revise  proposed  bills,  and  advise 
as  to  the  consistency  and  legal  effect  of  any  legislation.  As 
a  matter  of  fact,  however,  this  group  of  supposed  experts  is 
by  no  means  always  consulted. 

The  chief  cause  of  bad  legislation  —  in  a  social  sense  —  is 
the  pressure  exerted  on  behalf  of  sinister  private  interests  seeking 
special  favors  at  the  hands  of  the  legislature.  ''There  is  hardly 
one  of  the  many  and  widely  diversified  interests  of  the  state," 
says  Mr.  Roosevelt,  "that  has  not  a  mouthpiece  at  Albany,  and 
hardly  a  single  class  of  these  citizens  —  not  even  excepting,  I 
regret  to  say,  the  criminal  class,  which  lacks  its  representative 
among  the  legislators."  ^  The  sinister  elements  are  also  repre- 
sented outside  of  the  legislature  by  organized  lobbyists,  bringing 
every  imaginabIe„.kili£L  .of  pressure  to  secure  the  enactrhent  of 
special  laws.  The  far-reaching  ramifications  and  the  splendid 
organization  of  a  lobby  were  revealed  by  the  famous  insurance  in- 
vestigation in  New  York.^  A  powerful  interest  that  wishes  to 
secure  some  favor  will  maintain  a  representative  at  the  state 
capital  for  the  purpose  of  becoming  acquainted  with  those  mem- 
bers~of  the  legislature  who  can  be  reached  by  one  of  many  influ- 
ences —  by  social  considerations,  money,  or  fear  of  being  defeated 
for  reelection.  On  tKe^other  hand,  corporations  are  often  forced 
to  mainfaih  lobbyists  to  defeat  "  strike  "  bills  brought  in  for  the 
purpose  of  extorting  money  from  them.^ 

Several  of  the  states  have  sought  to  rid  our  legislatures  of  the 
undesirable  elements  by  statute.  New  York,  for  example, 
has  provided  that  every  person  retained  or  employed  for  com- 
pensation as  a  counsel  or  agent  by  any  person,  firm,  corporation, 
or  association,  to  promote  or  oppose,  directly  or  indirectly,  the 
passage  of  any  bill  or  resolution,  by  either  house,  or  to  influence 
executive  approval  of  any  such  bill  or  resolution,  must  be  regis- 
tered every  year  (before  entering  upon  any  such  service)  in  the 
office  of  the  secretary  of  the  state,  and  must  give  the  name  of  the 
person  or  association  by  whom  he  is  retained  and  at  the  same  time 

*  American  Ideals,  pp.  63H56.  2  g^g  Readings,  p.  482. 

^  Ibid.,  p.  484. 

-^  OF    THE 


544  American  Government  and  Politics 

furnish  a  brief  description  of  the  legislation  for  or  against  which  he 
is  working.  The  law  requires  also  every  person  or  corporation  to 
file  in  the  office  of  the  secretary  of  the  state  a  complete  account 
of  all  the  money  spent  in  influencing  legislation  during  the  im- 
mediately preceding  session.  The  duly  accredited  agents  of 
counties,  cities,  towns,  villages,  public  boards,  and  public  institu- 
tions are  exempted  from  the  provisions  of  this  law,  but  penalties 
are  imposed  upon  all  others  failing  to  observe  its  terms. 

The  Wisconsin  law  against  lobbyists  prescribes  that  legislative 
agents  or  counsels  must  not  attempt  to  influence  members  pri- 
vately, but  must  confine  themselves  to  arguing  before  com- 
mittees and  filing  printed  briefs  with  the  members  of  the  two 
houses.  Undoubtedly  this  legislation  has  had  a  useful  effect. 
An  observer  of  the  law  of  Wisconsin  states:  "The  effects  of 
this  law  have  been  most  salutary.  The  lobbyists  who  formerly 
frequented  the  halls  of  the  capitol  and  crowded  the  corridors 
of  the  hotels  from  the  beginning  to  the  end  of  the  session 
have  disappeared.  There  is  no  longer  . . .  any  chance  for  the 
exercise  of  that  sinister  influence  which,  disguised  as  good  fellow- 
ship and  exerted  mainly  in  barrooms,  commits  members  in 
advance  to  the  support  or  opposition  to  bills  of  which  they 
know  nothing."  ^ 

Another  important  deteriorating  influence  in  our  legislation 
is  the  lack  of  practical  information  with  regard  to  bills  brought 
up  for  the  consideration  of  the  legislature;  but  happily,  however, 
some  serious  attempts  are  being  made  to  remedy  this  difficulty. 
New  York  established  in  1890  a  legislative  library  which  keeps  a 
careful  record  of  the  legislation  of  all  the  states,  and,  in  addition 
to  maintaining  a  well-equipped  library,  issues  valuable  bulletins. 
In  1 901  the  Wisconsin  legislature  appropriated  a  small  sum  of 
money  for  a  legislative  reference  library,  and  employed  Dr. 
McCarthy,  a  careful  student  of  economics  and  politics,  to  act 
as  legislative  reference  librarian.  Dr.  McCarthy  began  at  once 
a  collection  of  materials  bearing  upon  every  kind  of  measure 
that  might  possibly  come  before  the  legislature  of  that  state.  ^ 
That  body  now  has  at  its  service  a  competent  expert  and  a  full 
supply  of  legislative  materials;  and  any  member  is  at  liberty  to 

^The  following  states  now    have  anti-lobby  laws:  Missouri,  Nebraska, 
Idaho,  South  Dakota,  and  Massachusetts. 
'  See  Readings,  p.  473. 


The  State  Legislature  545 

make  the  widest  possible  use  of  the  materials  and  technical  assist- 
ance at  his  disposal.  This  idea  has  spread  to  other  states  and  un- 
doubtedly contains  the  germs  of  a  most  important  reform.^ 

To  assist  further  in  bringing  order  out  of  the  chaos  of  state  leg- 
islation, Wisconsin  created,  in  1909,  the  ofl&ce  of  revisor,  whose 
duties  are  as  follows:  "  (i)  to  maintain  a  loose-leaf  system  of  the 
statutes,  separating  those  statutes  in  force  frora  those  repealed 
or  superseded;  (2)  to  maintain  a  loose-leaf  ledger  of  court  decisions 
referring  to  the  statutes;  (3)  to  present  to  the  committees  on 
revision  of  each  house  of  the  legislature,  at  the  beginning  of  each 
session,  bills  providing  for  such  consolidation  and  revisions  as 
may  be  completed  from  time  to  time;  (4)  to  keep  an  alphabetical 
subject  card-index  to  the  statutes;  (5)  to  formulate  and  prepare 
a  definite  plan  for  the  order ,'classification,  arrangement,  and  print- 
ing of  the  statutes  and  session  laws;  and  (6)  to  supervise  and 
attend  to  the  preparation,  printing,  and  binding  of  such  compila- 
tions of  particular  portions  of  the  statutes  as  may  be  ordered  by 
the  head  of  any  department  of  the  state."  ^ 

Another  method  of  bringing  more  definite  information  to  bear 
on  state  legislation  is  being  developed  in  the  growing  practice  of 
creating  special  committees  to  investigate  important  technical 
problems,  and  prepare  complete  measures  for  the  legislature. 
Notable  examples  of  this  practice  are  afforded  in  New  York 
.by  the  Stevens  gas  committee  of  1904,  which  made  a  searching 
study  of  the  conditions  of  gas  manufacture,  and  furnished  the 
basis  for  important  legislation;  and  by  the  Armstrong  commis- 
sion of  1905,  which  thoroughly  inquired  into  the  life  insurance 
business,  and  made  startling  revelations  of  chicanery  and  neglect 
of  duty  on  the  part  of  responsible  officials,  and  then  instituted 
important  reformatory  legislation.^ 

^  Within  recent  years  departments  have  been  established  in  Indiana, 
Rhode  Island,  North  and  South  Dakota,  and  Michigan.  In  the  following 
states:  Alabama,  California,  Nebraska,  Iowa,  Oregon,  Montana,  Virginia, 
Washington,  and  North  Carolina,  departments  for  legislative  reference  work 
have  been  established  by  the  state  librarians  on  their  own  account.  In  1909, 
bills  creating  legislative  reference  departments  were  pending  in  the  legisla- 
tures of  Idaho,  Illinois,  Kansas,  Massachusetts,  Missouri,  and  Montana. 
E.  A.  Fisher,  in  the  Political  Science  Review  for  May,  1909,  p.  223. 

'  American  Political  Science  Review  for  August,  1909,  p.  421. 

^For  the  methods  employed  by  the  committee,  see  the  extract  from  a 
report  by  the  New  York  Highvvays  Committee  in  the  Readings,  p.  471. 


546  American  Government  and  Politics 

There  is  one  fault  in  our  legislatures  which  neither  technical 
bill  drafting  nor  changes  in  political  machinery  can  overcome  — 
that  is  the  want  of  active  interest  on  the  part  of  the  citizens  at 
large,  and  especially  their  lack  of  practical  knowledge  of  the 
work  actually  in  progress  in  the  legislature.  Even  where  the 
state  capitol  is  in  a  metropolis,  the  newspapers  give  relatively 
little  space  to  the  discussions,  excepting  the  spectacular  ones, 
which  by  no  means  always  relate  to  the  most  important 
measures  in  the  legislature.  It  is  seldom  that  debates  excite  any 
considerable  interest.  No  very  important  portion  of  the  popula- 
tion keeps  track  of  the  bills  of  pubHc  interest;  and,  indeed,  owing 
to  the  compUcations  of  procedure,  it  is  difficult,  even  for  the 
citizen  with  technical  knowledge  and  a  generous  leisure,  to 
follow  measures  through  their  various  stages. 

It  was  on  account  of  this  fact  that  the  Citizens'  Union  of  New 
York  adopted  a  unique  device  for  keeping  citizens  in  touch  with 
the  legislative  work  at  Albany  which  especially  affects  the  metrop- 
olis. This  Union  has  a  committee  on  legislation  which  main- 
tains a  bureau  at  Albany  during  the  entire  session  and  secures, 
at  the  very  earliest  opportunity  after  introduction,  every  bill 
relating  to  the  city  itself.  These  bills  are  sent  to  the  city,  where 
an  expert  committee  reviews  them,  considering  their  social  and 
their  technical  character.  If  the  committee  comes  to  the  con- 
clusion that  any  especially  important  bill  ought  to  receive  the 
support  of  the  citizens,  it  immediately  begins  a  campaign  of 
popular  education  on  the  question  through  the  press  and  by 
means  of  the  platform.  If  the  committee  comes  to  an  adverse 
opinion,  it  conducts  a  campaign  of  protest. 

The  committee  furthermore  publishes  an  annual  report,  in 
which  it  reviews  the  measures  passed  or  introduced  affecting  the 
city.  It  also  takes  up  the  general  pubhc  laws  relative  to  the 
whole  state  and  the  city  incidentally.  This  annual  report,  further- 
more, contains  the  record  of  each  assemblyman  and  senator  at  the 
capital;  it  gives  a  complete  list  of  the  bills  introduced  by  each; 
it  states  which  way  each  voted  on  every  important  bill  in  the 
legislature;  and  it  concludes  with  the  expression  of  an  opinion  01 
the  character  of  each  member  as  an  effective  representative.^ 


See  Readings,  p.  486. 


CHAPTER  XXVI 

THE   JUDICIAL   SYSTEM 

The  Structure  of  the  Courts 

The  courts  are  the  great  tribunals  of  the  citizen  for  the  protec- 
tion of  his  personal  and  property  rights;  and  almost  every  one,  in 
some  capacity,  comes  in  contact  with  the  judiciary  of  his  state. 
If  he  is  a  business  man,  he  may  have  to  resort  to  a  court  to  collect 
a  bad  debt  or  a  note,  or  to  settle  a  dispute  with  a  fellow  merchant. 
If  he  is  injured  in  an  accident,  he  goes  into  a  court  to  sue  the  re- 
sponsible party  for  damages.  He  may  have  to  appear  as  a  witness 
to  tell  what  he  knows  of  the  transactions  involved  in  a  lawsuit;  or 
if  he  is  unfortunate  enough  to  have  his  pocket  picked  or  his  house 
robbed,  he  may  testify  against  the  offender.  Then,  practically 
every  man  not  legally  exempt,  is  liable,  at  one  time  or  another 
during  his  life,  to  be  called  upon  to  serve  on  a  jury,  and  thus 
himself  become  a  part  of  the  regular  judicial  machinery.  Finally, 
if  he  dies  leaving  heirs,  they  may  need  the  assistance  of  the  courts 
in  the  distribution  of  his  estate  or  in  collecting  his  life  insurance. 
These  are  only  a  few  of  the  innumerable  instances  which  illus- 
trate the  place  of  the  courts  in  the  life  of  the  citizen. 

The  great  mass  of  litigation  is  disposed  of  by  the  state  courts.^  J 
The  jurisdiction  of  the  federal  courts  is  specifically  defined, 
and  within  somewhat  narrow  Hmits,  by  the  Constitution  of  the 
United  States.^  Moreover,  in  many  cases  the  state  courts  have 
a  concurrent  jurisdiction  with  the  federal  courts,  and  a  Utigant 
has  a  choice  of  tribunals  before  which  to  bring  his  suit. 

In  every  state,  the  courts  are  arranged  in  a  progressive  series.^ 

'Reference,  Baldwin,  The  American  Judiciary,  p.  125. 
^  See  above,  chap.  xv. 

3  For  the  local  courts,  see  below,  chap,  xxix;  for  the  court  of  unpeachment, 
above,  p.  509. 

547 


548  American  Government  and  Politics 


I 


At  the  bottom  of  the  scale  stand  the  justices  of  the  peace,  who 
have  jurisdiction  over  civil  cases  involving  very  small  amounts, 
and  over  petty  offences.  In  large  cities,  the  criminal  and  civil 
jurisdiction  of  the  justices  of  the  peace  is  sometimes  divided 
between  two  sets  of  courts:  the  poUce  courts  and  the  municipal 
civil  courts.         j 

In  most  states  there  are  county  courts,  generally  of  limited 
jurisdiction.  They  have  cognizance  of  actions  involving  consider- 
able sums  and  usually  consider  appeals  from  judgments  of  justices 
of  the  peace.  They  also  have  jurisdiction  over  most  of  the 
criminal  offences.  They  are  sometimes  styled  courts  of  common 
pleas  or  district  courts.  In  some  states,  they  have  certain  ad- 
ministrative functions  in  addition  to  their  judicial  duties. 

Often  there  is  a  superior,  circuit,  or  district  court,  immediately 
above  the  county  court,  which  enjoys  unlimited  original  jurisdic- 
tion in  civil  and  criminal  matters  and  may  try  all  cases  over  which 
the  lower  courts  have  no  jurisdiction.  The  judges  of  this  tribunal 
are  generally  elected  or  appointed  for  districts  larger  than  the 
county,  but  hold  terms  of  court  within  the  several  counties  of 
their  district  or  circuit. 

At  the  head  of  the  judicial  system  of  each  state  stands  the 
appellate  court  of  last  resort,  which  ordinarily  deals  only  with 
appeals  on  points  of  law,  not  of  fact.  It  is  known  by  various 
names,  such  as  supreme  court,  court  of  appeals,  court  of  errors  and 
appeals,  or  supreme  judicial  court. 

In  addition  to  these  courts,  there  are  sometimes  special  tri- 
bunals for  particular  purposes:  chancery  courts,  which  adminis- 
ter equity;  ^  probate  or  surrogates'  courts  for  the  settlement  of 
estates  of  deceased  persons;^  children's  courts  deaHng  with 
offenses  committed  by  children;^  and  courts  of  claims  for  hear- 
ing claims  against  the  state. 

The  courts,  with  the  exception  of  the  very  lowest,  have  clerks 
to  keep  the  records  of  their  proceedings  and  to  perform  minis- 
terial functions  such  as  the  issue  of  processes  and  writs.  In 
many  states,  the  offices  of  county  clerk  and  court  clerk  are  com- 

'■  Below,  p.  554. 

^  Ihid.,  p.  645.  Where  the  latter  are  established,  there  is  usually  a  sepa- 
rate one  for  each  county.  They  are  ordinarily  known  as  courts  of  probate, 
but  in  some  cases  as  surrogates'  courts,  or  as  orphans'  courts. 

^Ibid.,  p.  613. 


The  Judicial  Systern  549 

bined  in  one  person,  who  is  an  elective  official.*  In  other  states, 
however,  there  are  separate  clerks  for  the  courts,  in  some 
instances  appointed  by  the  judges,  and  in  others,  particularly  in 
the  South  and  West,  elected  by  the  voters  for  short  terms.^ 

An  account  of  the  judicial  system  would  not  be  complete  without 
some  consideration  of  the  prosecuting  attorney.^  In  most  states 
he  is  an  elective  county  officer,  but  in  some  instances  he  is  selected 
for  districts  larger  than  a  county. ^  He  represents  the  state  in 
all  criminal  cases  and  conducts  the  prosecution.  He  makes  pre- 
liminary investigations  into  crimes  and  determines  whether  a 
prosecution  should  be  instituted.  If  he  decides  in  the  affirmative, 
he  presents  the  case  before  the  grand  jury.^  If  the  grand  jury 
returns  an  indictment  —  that  is,  declares  that  the  accused  should 
be  held  for  trial  —  the  prosecuting  attorney  takes  charge  of  the 
prosecution  at  the  trial.  In  one  respect,  his  functions  are  similar 
to  those  of  the  counsel  for  the  plaintiff  in  a  civil  suit.  Yet,  in 
another  way,  he  is  much  more  than  that.  He  should  not  be  in- 
terested in  securing  a  conviction  at  any  cost.  He  is  a  quasi- 
judicial  officer  and  is  interested  in  getting  at  the  truth  and  doing 
justice.  In  addition  to  performing  his  functions  in  criminal 
trials,  he  at  times  also  represents  the  county  in  civil  cases. 

The  judicial  system  just  outlined  can  best  be  illustrated  by  a 
brief  survey  of  the  courts  of  a  single  commonwealth  —  New  York. 
As  in  other  states,  we  find,  at  the  bottom  of  the  scale,  the  justices 
of  the  peace  (elected  by  popular  vote),  who  have  jurisdiction  over 
very  small  civil  cases  and  over  petty  criminal  offences.  In 
cities,  these  two  functions  are  generally  divided  between  two  sets 

'  A  clerk  is  chosen  for  each  county,  even  in  cases  where  several  counties 
are  grouped  in  one  judicial  district,  for  it  is  desirable  for  each  to  keep  its  own 
records. 

^  There  seems  to  be  little  reason  for  making  the  court  clerk  an  elective 
oflficial.  His  duties  are  generally  purely  ministerial  and  are  performed  under 
the  direction  of  the  judges,  who  ought  to  have  the  power  of  appointing  and 
removing  him.  The  highest  court  of  the  state  has  a  separate  clerk  who  is 
also,  in  some  cases,  an  elective  officer. 

3  See  below,  p.  643. 

*  He  is  known  variously  as  prosecuting  attorney,  district  attorney,  state's 
attorney,  attorney  for  the  commonwealth,  county  attorney,  and  county 
solicitor. 

' For  a  discussion  of  the  grand  jury,  see  "Criminal  Procedure,"  below, 
p.  571. 


550  American  Government  and  Politics 


of  courts  —  a  tribunal  for  the  trial  of  small  civil  cases,  usually 
known  as  the  municipal  court,  and  that  for  petty  criminal  cases, 
called  the  police  or  the  magistrate's  court.  In  addition  to  them 
there  are,  in  New  York  City,  courts  of  special  sessions  for  the 
trial  of  misdemeanors.^ 

On  the  next  rung  of  the  ladder  are  the  county  court  and  the 
surrogate's  court.^  The  county  court  is  presided  over  by  the 
county  judge,  and  has  jurisdiction  over  all  civil  cases  involving 
$2000  or  less  and  over  all  crimes  except  murder,^  which  is  tried 
in  the  supreme  court.  In  New  York  county  the  civil  and  crimi- 
nal jurisdiction  of  the  county  court  is  divided  between  two  courts, 
—  the  city  court  and  the  court  of  the  general  sessions. 
[  The  next  higher  tribunal  is  the  supreme  court.  For  the  or- 
ganization of  this  court  the  state  is  divided  into  nine  judicial 
districts,  in  each  of  which  from  five  to  thirty  justices  are  elected 
for  terms  of  fourteen  years.  The  court  h^s  unlimited  original 
jurisdiction  and  holds  terms  in  each  county  within  the  state. 
There  is,  in  each  of  four  departments  into  which  the  state  is 
divided,  an  appellate  division  of  the  supreme  court  for  the  dis- 
position of  appeals,  and  for  many  causes  the  appellate  division 
forms  the  highest  tribunal,  thus  reheving  the  pressure  on  the 
court  of  last  resort  in  the  state.  Supreme  court  judges  are 
elected  by  popular  vote. 

At  the  head  of  the  judicial  system  of  the  state  stands  the  court 
of  appeals,  which  is  composed  of  seven  judges^elected  by  the  voters 
for  terms  of  fourteen  years.  It  has  only  appellate  jurisdiction 
and  reviews  questions  of  law  alone,  except  in  cases  involving 
capital  punishment.  Whenever  there  is  a  great  pressure  of 
business  the  governor  may  assign  supreme  court  justices  to  act 
as  associate  justices  of  the  court  of  appeals. 

In  the  great  majority  of  the  states  the  judges  are  chosen  by 
popular  vote.  The  judges  of  the  lower  courts  are  elected  for 
short  terms;  those  of  the  higher  courts  hold  their  ofiice  for  a 
longer  period  of  time  —  usually  varying  from  six  to  twelve  years, 
but  in  a  few  states  they  are  longer.  Thus  in  New  York  the  jus- 
tices of  the  supreme  court  and  the  judges  of  the  court  of  appeals 

^  For  definition  of  misdemeanors,  see  "Criminal  Law,"  below,  p.  570. 
^  Below,  p.  643. 

3  In  New  York  county  the  court  of  general  sessions  has  jurisdirtion  over 
murder. 


i 


The  Judicial  System  551 

are  elected  for  fourteen  years,  while  in  Pennsylvania  the  term  of 
the  judges  of  the  supreme  court  is  twenty-one  years.  In  general 
it  may  be  said  that  the  tendency  is  toward  the  longer  term  be- 
cause it  makes  the  judges  more  independent  of  the  poUticians  who 
happen  to  ])e  in  power  for  the  moment. 

There  are  some  states  that  do  not  leave  the  selection  of  judges 
(especially  of  the  higher  courts)  to  the  people.  In  Delaware,  for 
example,  the  chancellor,  chief  justice,  and  associate  judges  are 
chosen  by  the  governor  and  senate;  and  in  New  Jersey  the  jus- 
tices of  the  supreme  court,  chancellor,  judges  of  the  court  of 
errors  and  appeals,  and  judges  of  the  inferior  court  of  common 
pleas  are  Hkewise  appointed  by  the  governor  and  senate.  In 
Massachusetts  all  judges  are  appointed  by  the  governor  with  the 
approval  of  his  council  —  a  small  body  elected  by  popular  vote. 
Other  states  —  South  Carolina,  Rhode  Island,  Vermont,  and 
Virginia  —  leave  the  choice  to  the  legislature.  In  Massachusetts, 
New  Hampshire,  and  Rhode  Island,  the  judges  have  life  terms; 
but  in  other  states  the  term  is  fixed  at  a  number  of  years  — 
twelve  in  Delaware. 

There  has  been  considerable  controversy  as  to  which  of  the 
three  methods  of  choosing  —  namely,  selection  by  the  legislature, 
the  governor,  or  popular  vote  —  is  the  most  advantageous  to  the 
cause  of  justice.  It  is  generally  agreed  that  the  first  is  not  at  all 
desirable;  the  choice  is  only  too  often  made  by  log-rolling  tactics 
when  it  is  intrusted  to  the  legislature.  On  the  other  hand,  there 
is  much  to  be  said  on  the  merits  of  the  other  two  methods  — 
popular  election  and  appointment  by  the  governor.  The  friends 
of  the  former  practice  emphasize  the  fact  that  choice  by  the  people 
seems  to  be  the  only  democratic  way  of  selecting  important 
ofiicials,  for  appointment  by  the  governor  renders  the  judges  too 
independent  of  the  popular  will  and  tends  to  make  them  arbitrary. 
They  point  out  also  that,  in  the  case  of  local  judges,  the  people 
of  the  district  are  likely  to  know  more  about  the  qualifications  of 
the  candidates  than  the  governor  who  is  obliged  to  depend  on 
recommendations  of  third  parties  —  that  is,  on  the  recommenda- 
tions of  a  local  poUtical  machine.^  Finally,  the  champions  of  the 
elective  system  point  to  the  fact  that  on  the  whole  it  has  worked 
successfully  ^  and  that  excellent  judges  have  been  obtained  under 
it.  The  higher  courts  of  states  like  New  York  which  have  elec- 
^  Readings,  p.  493.  ^  Ibid.,  p.  489. 


552  American  Government  and  Politics 

tive  judges  have  generally  been  composed  of  men  of  unquestioned 
integrity  and  legal  learning;  and  judges  who  have  served  a  long 
time  are  often  renominated  by  both  parties  and  thus  reelected 
practically  without  a  contest.  Finally,  the  advocates  of  popular 
election  point  out  that  in  so  far  as  judges  have  the  power  to  de- 
clare laws  void  their  fimctions  are  political  and,  therefore,  they 
should  not  be  removed  from  popular  control. 

To  offset  these  arguments,  those  who  favor  appointive  judges 
say  that  where  good  judges  have  been  obtained,  they  have  been 
secured  in  spite  of  popular  election,  not  because  of  it.  Massa- 
chusetts, whose  judges  have  always  been  distinguished  for  their 
high  character  and  legal  learning,  is  always  cited  as  the  state  in 
which  the  appointive  system  has  proved  eminently  successful. 
It  is  contended  that  the  people  do  not  have  the  capacity  to  pass 
upon  quaHfications  required  for  a  successful  judge  and  often 
select  the  most  popular  man  rather  than  the  one  most  fit.  Mak- 
ing the  judge  an  elective  officer,  the  advocates  of  the  appointive 
system  continue,  renders  him  dependent  on  political  leaders; 
party  service  —  not  fitness  —  is  made  a  test  for  the  office;  in 
order  that  the  republican  form  of  government  may  be  a  success 
and  justice  done  between  man  and  man,  the  judiciary  must  be 
absolutely  independent;  the  judge  must  feel  that  he  need  not 
come  up  for  a  renomination  before  the  leaders  of  his  party;  he 
must  not  be  afraid  to  render  an  unpopular  decision  which  may 
perhaps  cause  his  defeat  if  he  is  candidate  for  reelection.  There- 
fore, they  conclude,  the  appointive  system  is  the  only  one  which 
puts  the  judges  in  such  a  position.^ 

The  salaries  of  judges  are  usually  rather  low  in  comparison 
with  the  compensation  afforded  to  judicial  officers  in  Europe,  or 
with  the  income  of  the  first-class  practising  lawyer.  For  example, 
the  judges  of  the  supreme  court  in  Vermont  receive  only  $2500 
a  year.  There  has  been,  however,  a  tendency  in  recent  years  to 
increase  the  salaries  of  judges,  and  in  some  states  they  are  well 
paid.  New  York  now  pays  the  chief  justice  of  the  court  of  ap- 
peals $14,200  a  year  and  the  associate  judges  $13,700  each,  while 
supreme  court  justices  in  certain  districts  receive  $17,500  a  year. 

^  On  this  whole  question  of  choice  of  judges,  see  Readings,  p.  488. 


4 


The  Judicial  System  553 

The  Sources  of  Law 

I.  The  first  great  source  of  our  system  of  jurisprudence  is  the 
English  common  law/  Its  characteristic  feature  consists  in  the 
fact  that  its  rules  are  to  be  found,  not  in  some  code  enacted  at 
one  time  by  the  legislature,  as  is  generally  the  case  on  the  conti- 
nent of  Europe,  but  in  decisions  of  the  courts  spread  over  several 
centuries.  The  law  is  thus  built  up  and  developed  by  judicial 
precedents.  To  find  what  principle  governs  on  some  question 
of  private  law,  a  lawyer  practising  in  a  jurisdiction  where  the 
common  law  prevails  must  find  what  has  been  previously  decided 
by  the  courts  on  that  point  and  be  guided  by  those  decisions. 

The  common  law  began  its  development  in  mediaeval  England. 
When  a  case  came  before  the  royal  justices,  they  tried  to  discover 
the  prevailing  custom  on  the  subject  and  decide  the  question  in 
accordance  with  it.  Theoretically,  they  did  not  make  the  law, 
but  merely  formulated  the  customs  of  the  community  into  legal 
rules  and  gave  them  an  official  sanction.  As  a  matter  of  fact  they 
did  make  law,  for  they  interpreted  the  customs  and  had  the  power 
of  selecting  some  and  discarding  others.  When  another  case 
involving  the  same  point  was  brought  before  the  judges,  they 
naturally  followed  the  rule  laid  down  in  the  decision  of  the  first 
case.  If,  however,  it  was  thought  that  the  rule  of  the  first  case 
was  incorrect  or  that  conditions  had  changed,  they  would  over- 
rule the  previous  decision  and  work  out  a  new  doctrine.  This 
flexibility  is  one  of  the  best  features  of  the  common  law.  In  this 
way  a  body  of  precedents  was  built  up  and  a  set  of  legal  principles 
developed.  When  an  entirely  novel  case  came  up,  some  "general 
principle"  of  the  common  law  was  invoked  for  its  decision. 

As  the  common  law  developed,  it  gradually  became  more  and 
more  crystalUzed  and  less  flexible.  The  judges  tended  to  be 
technical,  and  any  Utigant  whose  case  did  not  fall  within  certain 
well-defined  classes  was  liable  not  to  be  granted  the  relief  really 
due  him.  In  numerous  instances  in  which  obvious  injustice  was 
done  there  was  no  remedy  at  law. 

These  deficiencies  of  the  common  law  necessitated  the  develop- 
ment of  a  new  body  of  jurisprudence  along  with  it.     This  new 

'  Louisiana,  whose  law  is  derived  from  the  continental  system,  is  an  excep- 
tion. There  are  some  southwestern  states  which  are  not  regarded  as  com^ 
mon  law  states.     See  Political  Science  Quarterly,  March,  1887. 


554  American  Government  and  Politics 


^ 


system  began  to  be  known  as  equity.  It  was  customary  for  a 
person  who  felt  that  he  had  been  wronged  and  could  obtain  no 
remedy  at  law,  to  petition  the  king,  and  at  a  later  period  the  king's 
chancellor,  for  relief.  The  granting  of  this  relief  was  at  first 
considered  an  executive  act  and  purely  a  matter  of  grace,  but 
gradually  the  chancery  evolved  into  a  regular  court  with  its  own 
body  of  equity  principles,  which  were  much  more  flexible  and  far 
less  technical  than  the  ordinary  law.  Equity,  therefore,  gave 
rehef  in  cases  where  none  could  be  had  at  law;  and  in  many 
instances  where  the  legal  remedy  was  inadequate  it  accorded  the 
relief  that  was  really  demanded  by  the  plain  justice  of  the 
situation. 

For  example,  the  only  redress  granted  at  law  is  money  damages, 
but  equity  goes  much  farther  and  will  command  a  person  to  do 
something  which  is  for  the  benefit  of  the  plaintiff.  Thus,  in  some 
kinds  of  contracts,  a  court  of  equity  will  compel  the  party  in 
default  to  perform  his  part  of  the  agreement.  Again,  equity  will 
command  a  person,  by  an  order  called  an  "injunction,"  to  refrain 
from  doing  something  which  is  injurious  and  unjust  to  the 
plaintiff. 

The  English  systems  of  law  and  equity  were  transplanted  to 
America.  When  the  colonies  cast  off  their  allegiance  to  Great 
Britain,  some  of  the  state  constitutions  specifically  provided  that 
the  common  law  should  continue  in  force;  but  without  such  a 
provision,  the  common  law  continued  to  be  apphed  in  the  Ameri- 
can courts  and  is  to-day  applied  in  so  far  as  it  has  not  been  modi- 
fied by  legislation.  Very  few  commonwealths,  however,  have 
retained  the  system  of  separate  chancery  courts.^  Generally  the 
same  court  administers  both  law  and  equity,  sitting  with  a  jury 
for  the  trial  of  cases  at  law  and  without  one  for  the  disposition  of 
equity  causes;  and  the  term  "common  law"  has  come  to  include 
both  law  in  its  technical  sense  and  equity. 

Although  the  common  law  as  administered  in  the  various  states 
constitutes  a  single  system  of  jurisprudence,  yet  it  has  undergone 
modification  in  the  different  jurisdictions.  Thus,  for  instance, 
on  many  points  the  "common  law"  of  Massachusetts  and  New 
York  will  be  found  to  differ.  In  each  state  the  interpretation 
which  is  binding  is  made  by  its  court  of  last  resort;  and  as  differ- 
ent courts  will  hold  varying  views  on  what  is  or  ought  to  be  the 
'  New  Jersey,  Tennessee,  Alabama,  Delaware,  and  Mississippi. 


The  Judicial  System  555 

law  on  a  particular  topic,  the  rules  applied  in  different  common- 
wealths will  vary.  But  the  courts  of  each  state  by  no  means 
disregard  the  decisions  of  sister  states.  Although  the  latter  are 
not  considered  as  authoritative  as  the  precedents  of  the  state  in 
which  the  case  is  tried,  they  are  looked  to  as  advisory  statements 
of  the  law  and  have  a  great  moral  weight,  particularly  in  matters 
in  which  the  point  in  question  has  not  been  passed  on  in  that 
jurisdiction. 

II.  The  second  important  source  of  the  law  is  the  statutes 
enacted  by  the  state  legislatures.^  Though  the  number  of  acts 
passed  by  the  various  legislative  bodies  is  enormous,  the  great 
majority  of  them,  probably  as  much  as  nine-tenths,  are  purely 
administrative  in  character.  They  relate  to  the  structure  and 
functions  of  the  government,  —  elections,  powers  of  officers,  etc., 
—  and  do  not  generally  affect  private  law,  which  is  left  almost 
entirely  to  judicial  tribunals.^  There  are  a  few  branches  of  pri- 
vate law,  however,  which  it  is  customary  to  regulate  by  statute. 
These  include  principally  matters  which  affect  the  public  at  large 
as  well  as  a  single  individual.  Thus  the  rules  controlling  mar- 
riage and  divorce,  wills  and  succession  to  property,  the  formation 
of  corporations,  are  ordinarily  found  in  legislative  enactments. 

During  the  last  fifty  years,  moreover,  several  fields  of  the  com- 
mon law  have  been  covered  by  statute. 

(i)  One  of  these  is  criminal^  law.  In  many  states  there  is  a 
penal  code  or  penal  law  defining  the  various  crimes  and  providing 
punishments  for  each  of  them.  It  is  generally  declared  in  such 
cases  that  only  acts  prescribed  as  crimes  in  the  code  shall  be 
penahzed,  and  the  common  law  of  crimes  is  abolished,  except  in 
so  far  as  it  is  used  as  a  guide  for  the  interpretation  of  the  statute. 

(2)  Criminal  procedure  is  another  subject  that  is  commonly 
covered  by  statutory  enactment,  and  special  codes  or  laws  regu- 
lating in  detail  such  procedure  now  exist  in  a  large  number  of 
the  states. 

(3)  A  third  very  important  field  now  frequently  occupied  by 
statute  is  civil  procedure.  The  technical  and  cumbersome  sys- 
tem of  common  law  pleading  has  been  simplified  and  modified  by 

*  In  the  broadest  sense,  state  and  federal  constitutions,  executive  orders, 
etc.,  are  to  be  included  among  the  sources  of  the  law. 
^  On  codification,  however,  see  below,  p.  556. 


556  American  Government  and  Politics 


fwrvt      ^^" 


legislative  enactment.  New  York  was  the  pioneer  in  this  reform 
It  adopted  a  code  of  civil  procedure  about  fifty  years  ago,  and 
many  other  states  have  since  followed  this  example.  ^ 

(4)  Another  form  of  encroachment  on  the  common  law  is  to  S 
be  found  in  the  codification  of  the  common  law  on  some  particu- 
lar topic  and  its  enactment  into  statute.     Thus  in  New  York  — 
one  of  the  states  which  has  gone  far  in  this  direction  —  we  find 

a  real  property  law,  general  business  law,  lien  law,  etc.  This 
tendency  toward  codification  has  been  expedited  by  the  national 
conference  on  uniform  state  laws  consisting  of  commissioners 
appointed  by  the  governors  of  various  states.  It  has  codified 
the  law  on  many  subjects,  particularly  those  relative  to  commerce, 
and  has  recommended  its  proposals  to  the  state  legislatures  for 
adoption.  The  most  important  act  drawn  up  by  the  commis- 
sioners is  the  negotiable  instruments  law,  which  has  been  enacted 
by  a  majority  of  the  states.  It  has  also  prepared  a  sales  of  goods 
act,  a  warehouse  receipts  act,  a  bill  of  lading  act,  etc.,  all  of  which 
have  been  adopted  by  one  or  more  of  the  commonwealths. 

(5)  Finally,  some  states  have  taken  a  still  further  step,  which 
many  persons  regard  as  undesirable,  and  attempted  to  codifyi^e 
entire  civil  law.  Louisiana  adopted  a  civil  code  soon  after  its 
annexation  by  the  United  States.  California,  North  Dakota, 
South  Dakota,  and  some  other  states  in  the  West  and  South 
have  adopted  codes  which  purport  to  include  all  the  principal 
rules  of  the  common  law.  In  those  commonwealths  the  code, 
instead  of  previous  decisions,  has  to  be  examined  in  order  to 
find  the  rule  that  governs  a  particular  case.  But  even  there, 
the  common  law  has  to  be  considered  as  supplementary  to  the 
code,  as  no  code  commission,  no  matter  how  wise,  can  possibly 
foresee  every  possible  set  of  circumstances  that  can  arise  or 
decide  in  advance  every  question  of  law  that  may  come  up. 

Most  lawyers  consider  the  codification  of  the  whole  common 
law  an  undesirable  consummation  of  the  movement  toward  the 
increase  of  legislation.  In  the  first  place,  they  contend  that  a 
civil  code  fails  to  accompUsh  the  only  purpose  for  which  it  is 
enacted;  namely,  to  make  the  law  more  definite  and  certain. 
It  is  conceded  that  no  code  can  provide  for  all  possible  contingen- 
cies and,  therefore,  its  rules  have  to  be  made  sufficiently  general 
and  elastic  to  allow  their  application  to  novel  cases.  Quite  as 
much  Utigation  arises  over  the  interpretation  of  the  code,  as 


The  Judicial  System  557 

arises  in  other  states  over  the  question  as  to  what  is  or  ought  to  be 
the  common  law  rule  on  a  particular  subject. 

In  addition,  the  opponents  of  the  system  urge  that  a  civil  code 
involves  a  number  of  positive  disadvantages.  In  the  first  place, 
it  increases  the  diversity  of  the  law  among  the  various  states. 
While  the  development  of  private  law  is  in  the  hands  of  the  courts, 
the  tribunals  of  one  state  are  always  guided  to  some  extent  by 
the  precedents  of  other  commonwealths,  and  at  times  they  modify 
their  views  so  as  to  accord  with  the  general  weight  of  authority, 
thus  working  toward  a  desirable  uniformity  in  the  law  throughout 
the  United  States.  But  the  moment  that  the  law  is  codified,  the 
diversities  among  the  states  are  crystalHzed  and  tend  to  become 
greater  by  subsequent  legislative  amendment. 

The  greatest  objection,  however,  brought  up  against  codifica- 
tion is  the  fact  that  it  puts  an  end  to  the  flexibility  of  the  law. 
Where  the  common  law  is  not  codified,  the  courts,  by  distinguish- 
ing new  cases  and  at  times  by  overruling  former  precedents,  may 
adapt  the  law  to  new  conditions  and  keep  it  more  or  less  up  to 
the  needs  of  the  community.  But  as  soon  as  the  law  is  codified, 
this  power  of  the  courts  is  taken  away  from  them  and  the  rules 
of  law  can  only  be  modified  by  legislative  action,  which  leads  to 
constant  tinkering  and  uncertainty. 

The  Civil  Law 

The  whole  domain  of  the  law  falls  into  two  divisions  —  civil 
and  criminal.  The  purpose  of  the  latter — to  use  legal  terminol- 
ogy —  is  to  punish  and  prevent  pubHc  wrongs,  while  that  of  the 
former  is  to  protect  the  rights  of  the  individual  and  to  redress 
his  wrongs.  The  rights  of  the  individual  can  be  classified  under 
three  heads:  the  right  of  personal  security,  the  right  of  personal 
liberty,  and  the  right  of  private  property.  The  last  is  the  most 
compHcated  of  the  three  and  to  it  we  must  devote  some  attention. 

(i)  Real  Property.  —  Property  is  divided  into  two  classes, 
real  and  personal.  Real  property  consists,  in  general,  of  land 
and  rights  connected  with  land,  while  the  personalty  includes  all 
movable  things  and  rights  not  connected  with  land.  Real  prop- 
erty is  again  subdivided  into  corporeal,  or  tangible,  and  incor- 
poreal, or  intangible.     The  former  is  land  and  buildings,  while 


cc8  American  Government  and  Politics 

the  latter  includes  all  the  rights  which  a  person  may  have  in  the 
land  of  another,  such  as  the  right  of  way  over  his  neighbor's  farm, 
the  right  to  pasture  cattle  in  another's  meadow,  etc. 

According  to  legal  theory,  land  is  not  owned  absolutely.  The 
so-called  owner  has  an  interest  or  an  "  estate  "  in  the  land.  These 
"estates "  are  of  various  kinds.  The  highest  estate  that  one  can 
have  in  land  is  an  estate  in  fee  simple,  which  virtually  amounts  to 
absolute  ownership,  and  the  person  who  has  such  an  estate  in  a 
plot  of  land  is  ordinarily  regarded  as  the  owner.  He  may  use  it 
for  any  purpose  that  does  not  violate  another's  right,  and  dispose 
of  it  in  almost  any  way  that  he  chooses.  Next  to  the  estate  in  fee 
simple  comes  the  estate  for  life.  The  person  who  owns  land 
in  fee  simple  may  convey  it  to  another  to  hold  during  Ufe.  The 
latter  thus  gets  a  " life  estate."  Then  there  are  Ufe  estates  which 
arise  by  operation  of  law;  in  most  states  a  husband  has  a  Ufe 
estate,  which  is  caUed  curtesy,  in  his  wife's  real  property,  after  she 
dies.  In  the  same  way,  if  the  husband  die  first,  the  wife  has  a  Ufe 
estate,  or  dower,  in  one- third  of  aU  the  real  property  owned  by 
the  husband  during  their  married  life.^ 

(2)  Personal  Property.  —  Personal  property  is  divided  into 
four  classes.  Leases  of  lands  or  buildings  are  personal  property 
and  constitute  the  first  class;  they  are  known  as  chattels  real. 
The  second  group  includes  everything  which  is  ordinarily  known 
as  personal  property;  that  is,  tangible  things,  such  as  watches, 
pianos,  clothing,  etc.  The  third  group  consists  of  rights  which 
do  not  extend  over  any  tangible  things,  either  immovable  or 
movable,  but  are  directed  against  particular  persons  or  corpora- 
tions, such  as  claims  against  debtors,  notes,  stocks,  bonds,  etc.; 
they  are  called  in  law  "  choses  in  action."  The  fourth  group 
consists  of  trade-marks,  copyrights,  etc. 

(3)  Torts.  —  The  violations  of  private  rights  recognized  by 

^Estates  in  fee  simple  and  estates  for  life  are  called  "freehold  estates," 
all  others  being  named  estates  less  than  freehold.  The  most  important  one 
in  the  latter  category  is  the  estate  for  years.  A  person  who  leases  land  or  a 
building  from  another  for  a  period  longer  than  one  year  is  said  to  have  an 
estate  for  years.  Estates  can  be  created  to  commence  in  the  future.  For 
instance,  a  person  may  grant  an  estate  for  life,  at  the  same  time  specifying 
that  when  the  Ufe  tenant  dies  a  certain  person  shall  get  the  estate  in  fee 
simple.  Estates  may  also  be  made  conditional.  To  illustrate,  a  person 
may  leave  all  his  real  property  to  his  widow  for  life,  provided  she  remains 
immarried.    Then  if  she  should  marry,  she  generally  loses  the  estate. 


I 


The  Judicial  System  559 

law  are  called  "torts."  ^  A  person  guilty  of  a  tort  may  be  sued 
[or  damages  by  the  person  whom  he  injures.  For  convenience, 
we  may  subdivide  torts  into  three  classes :  those  directed  against 
the  person,  those  aimed  at  property,  and  those  which  are  inva- 
sions of  both  person  and  property. 

(a)  False  imprisonment  —  one  of  the  torts  in  the  first  class  — 
:onsists  in  arresting  or  detaining  a  person  without  sufficient 
:ause.  Somewhat  akin  to  false  imprisonment  is  maUcious  prose- 
:ution.  A  person  who  mahciously  and  without  probable  cause 
institutes  proceedings  against  another  is  guilty  of  this  tort,  pro- 
dded the  original  action  has  terminated  in  favor  of  the  injured 
Darty.  Another  tort  directed  against  the  person  is  assault  and 
mattery .^  All  the  various  forms  of  disturbance  of  family  relations 
ire  torts,  such  as  abduction  of  the  wife  or  child,  adultery,  aliena- 
:ion  of  affection,  etc.  Finally,  there  is  the  tort  of  defamation  of 
:haracter.  It  occurs  in  two  forms:  libel,  which  is  expressed  in 
Diint  or  writing;  and  slander,  or  oral  defamation. 

(b)  Of  the  torts  directed  against  property,  the  most  important 
)ne  is  trespass  or  disturbance  of  another  in  the  possession  of  his 
property.  This  is  found  in  two  forms:  trespass  upon  land,  to 
:onstitute  which  mere  unauthorized  entry  on  another's  land  is 
efficient;  and  trespass  to  goods,  which  consists  in  wrongfully 
:aking  or  destroying  personal  property.  Deceit  is  knowingly 
naking  a  false  statement  to  another  on  which  the  latter  relies  and 
s  thus  damaged. 

{c)  Some  torts  affect  both  person  and  property.  The  first  of 
:hese  is  nuisance.  In  law  any  disturbance  of  another's  reasonable 
ise  and  enjoyment  of  his  own  property  constitutes  a  nuisance, 
rhus  the  maintenance  of  smelting  works  which  give  out  unpleas- 
int  odors,  unreasonable  ringing  of  church  bells,  noises  which 
iisturb  sleep,  and  numberless  other  acts  are  called  nuisances. 
Finally,  there  is  the  tort  of  negligence,  which  consists  in  the  failure 
to  perform  the  duty  of  care  which  one  owes  to  others.  Thus  the 
•eckless  running  of  a  railroad  train  which  results  in  an  accident, 
legligent  driving  in  a  city  street,  the  collapse  of  a  building  due 
to  defective  construction,  are  all  actionable  torts. 

Although  a  person  may  be  guilty  of  a  tort  there  are  circum- 

^  Reference  :  Burdick,  Law  of  Torts. 

^  Putting  another  in  fear  of  personal  injury  is  an  assault,  while  inflicting 
violence  upon  him  constitutes  a  battery. 


560  American  Government  and  Politics 

stances  under  which  no  recovery  is  allowed  against  him.  Thus, 
if  the  injured  party  was  himself  guilty  of  negligence  and  his  neg-* 
ligence  was  one  of  the  causes  that  led  to  his  injury,  he  cannot 
recover  any  damages.  This  "contributory  negligence"  on  the 
part  of  the  plaintiff  is  considered  a  complete  defence.  In  many 
cases,  the  so-called  "fellow-servant  rule"  prevents  a  recovery. 
For  example,  a  master  is  liable  for  his  servant's  torts;  but  if  one 
employee  is  injured  by  the  carelessness  of  another  employee,  the 
one  so  injured  cannot  recover  against  the  employer,  on  the  ground 
that  Ihey  were  "fellow-servants"  and  are  presumed  to  have  as- 
sumed the  risks  of  each  other's  negligence.^ 

(4)  Contracts.  —  A  large  group  of  rights  arises  from  agree- 
ments between  individuals  known  as  "  contracts."  To  constitute 
a  contract  there  must  be  an  offer  made  by  one  party  and  an  ac- 
ceptance of  the  offer  by  the  other.  Thus  if  Smith  says  or  writes 
to  Jones,  "I  offer  to  sell  you  my  house  for  $10,000,"  and  Jones 
repHes"!  accept  your  offer,"  in  legal  terminology  their  minds 
have  met  and  there  is  a  contract  between  them.  Smith  is  then 
bound  to  convey  the  house,  and  Jones  to  accept  and  pay  for  it.  A_ 
contract,  to  be  valid,  must  be  made  for  a  "consideration  ";  that 
is,  each  party  must  give  up  something.  Thus  in  the  illustration 
above,  one  promises  to  convey  the  house,  while  the  other  agrees 
to  pay  for  it.  A  mere  promise  made  by  one  party,  with  nothing 
received  in  exchange  for  it,  is  not  binding.  A  contract  need  not 
always  be  expressed  in  so  many  words,  but  is  often  implied  from 
the  transaction.  For  instance,  if  one  orders  goods  from  a  store, 
a  promise  to  pay  their  reasonable  value  is  implied. 

In  most  instances,  no  formaUty  is  necessary  to  make  a  vaHd 
contract  and  an  oral  agreement  is  as  binding  as  a  written  one.^ 
There  are  a  few  classes  of  contracts,  however,  which  must  be 
proved  by  written  evidence,  before  a  court  of  law  will  enforce 
them.  Among  these  are  contracts  for  the  sale  of  real  estate,  for 
the  sale  of  goods  worth  more  than  a  certain  amount,  contracts 
which  are  not  to  be  performed  within  a  year,  and  a  few  others. 

There  are  several  forms  of  contracts  that  are  especially  im- 
portant.    One  of  these  is  negotiable  instruments,  such  as  prom- 

*  This  rule  is  expressly  abolished  in  some  states  with  regard  to  certain 
employments.     See  below,  p.  736. 

^  Contracts  do  not  have  to  be  made  in  person,  but  may  be  made  through 
an  agent. 


The  Judicial  System  561 

issory  notes,  drafts,  checks,  etc.  Negotiable  instruments  have 
one  pecuUar  characteristic.  A  person  may  obtain  such  an  instru- 
ment from  another  by  fraud  and  therefore  may  not  be  able  to  sue 
on  it,  but  if  he  transfers  it  for  value  to  another,  who  does  not  know 
of  the  fraud,  the  latter  can  enforce  it.  This  rule  originated  in 
commercial  law,  and  its  purpose  is  to  facihtate  dealings  among 
merchants  and  bankers.  Another  common  form  of  contract  is 
the  contract  for  the  sale  of  personal  property.  What  are  known 
as  bailments  are  contracts  that  occur  very  frequently:  they 
consist  in  the  delivery  of  personal  property  to  another  for  some 
particular  and  temporary  purpose.  When  a  person  lends  a  book 
to  a  friend,  gives  his  watch  to  a  watchmaker  for  repairs,  pawns 
his  jewelry,  deposits  his  goods  in  a  storage  warehouse,  or  ships 
goods  by  freight  or  express,  a  contract  of  bailment  is  consum- 
mated. Still  another  large  class  of  contracts  is  seen  in  policies 
of  insurance,  —  life,  fire,  marine,  accident,  etc. 

If  one  of  the  parties  to  a  contract  fails  to  perform  his  obligation, 
the  other  may  sue  him  and  get  such  damages  as  were  caused 
by  the  breach.  But  in  some  cases  the  injured  party  may  do 
much  more.  He  may  bring  a  suit  in  equity,  and  the  court  of 
equity  will  order  the  other  party  to  carry  out  his  contract.  Such 
reUef,  which  is  known  as  "specific  performance"  is  limited,  how- 
ever, to  certain  classes  of  contracts,  the  principal  one  of  which 
consists  of  agreements  for  the  sale  of  real  estate. 

(5)  Domestic  Relations.  —  One  of  the  important  branches  of 
the  law  deals  with  marriage  and  all  the  relations  growing  out  of  it. 
At  common  law  no  particular  formality  was  necessary  to  consti- 
tute a  vaUd  marriage.  An  agreement  to  live  as  husband  and  wife 
was  sufficient.  This  rule  is  now  generally  modified  by  requiring  a 
formal  solemnization  of  all  marriages.  But  no  marriage  may  be 
consummated  anywhere  between  close  relatives  or  by  persons  be- 
low a  certain  age,  and  any  marriage  induced  by  fraud  or  duress 
may  be  declared  void  at  the  instance  of  the  injured  party.  Men- 
tal or  physical  incapacity  is  also  a  ground  for  annulment  of 
marriage. 

At  common  law,  all  personal  property  belonging  to  a  woman 
becomes  the  property  of  the  husband  on  her  marriage;  the 
husband  is  obUged  to  support  his  wife,  and  for  this  reason  he  is 
liable  for  all  necessaries  furnished  to  her,  if  he  fails  to  provide 
them  himself;  he  is  also  liable  for  debts  contracted  by  his  wife 
20 


562  American  Government  and  Politics 

previous  to  their  marriage;  a  married  woman  is  incapable  of 
making  a  binding  contract,  unless  her  husband  has  abandoned 
her;  the  husband  may  be  sued  for  any  torts  committed  by  his 
wife,  and  at  the  same  time  he  may  recover  for  any  injury  done  to 
her.  All  these  common  law  rules,  however,  have  been  modified 
to  a  greater  or  less  degree  throughout  the  United  States  ^  and 
in  the  most  advanced  commonwealths  married  women  now  have 
substantially  the  same  property  rights  as  men.^ 

In  every  state  except  one.  South  Carohna,  the  marriage  tie  may 
be  dissolved  by  an  absolute  divorce.  In  certain  cases  where  a 
sufficient  cause  for  an  absolute  divorce  does  not  exist,  a  limited 
divorce  or  a  separation  may  be  granted.  The  grounds  on  which 
an  absolute  divorce  is  allowed  vary  greatly  in  the  different  states, 
the  rule  being  very  strict  in  some  commonwealths,  and  very 
Uberal  in  others.  In  New  York,  the  only  ground  on  which  a 
divorce  is  granted  is  adultery,  but  in  some  states  mere  incom- 
patibility of  temper  or  abandonment  for  a  period  is  sufficient.^ 
In  some  western  states  divorces  are  so  easily  obtained  that  persons 
from  all  over  the  country  desirous  of  dissolving  their  marriages 
acquire  a  residence  in  one  of  them  and  bring  proceedings  there. 
Such  divorces,  however,  are  not  always  recognized  in  the  state 
in  which  the  parties  really  live.  There  now  is  a  strong  agita- 
tion on  foot  to  secure  a  uniformity  in  the  laws  of  the  different 
states  relating  to  marriage  and  divorce ;  but  it  is  carried  on 
principally  by  the  opponents  of  liberal  divorce,  and  has 
awakened  a  powerful  opposition  among  those  who  contend  that 
the  old  system  (which  absolutely  bound  the  wife  to  the  hus- 
band) is  a  reUc  of  slavery. 

(6)  Inheritance. — A  branch  of  the  law  that  is  somewhat  akin 
to  domestic  relations  is  the  one  deaUng  with  the  distribution  of 
a  person's  property  after  his  death.  It  provides  how  one's  real 
and  personal  property  shall  be  distributed  if  he  dies  intestate; 
that  is,  without  having  made  a  valid  will.  The  rules  of  succes- 
sion vary  greatly  in  the  different  states.  Often  there  are  separate 
rules  for  the  disposition  of  real  and  personal  property.     Where  a 

*  See  above,  p.  95. 

^  The  law  also  makes  provision  for  regulating  the  relations  between  parent 
and  child. 

^  In  South  Dakota  the  chief  grounds  are  cruelty,  desertion  for  one  year, 
neglect  for  one  year,  habitual  drunkenness,  adultery,  and  felony. 


The  Judicial  System  563 

person  has  left  a  will,  the  law  provides  for  its  enforcement  and 
the  disposition  of  the  property  in  accordance  with  its  terms. 
Usually  a  person  names  an  executor  in  his  will,  who  is  to  take 
charge  of  the  property  and  distribute  it  to  the  legatees.  In  cases 
in  which  there  is  no  will,  or  no  executor  is  named,  the  court  may 
appoint  an  administrator,  who  takes  charge  of  the  property  and 
distributes  it  in  accordance  with  law  or  in  accordance  with  the 
will. 

(7)  Corporations  and  Associations.  —  Finally,  the  law  gov- 
erns the  various  forms  of  associations  between  individuals  and 
regulates  the  rights  and  liabilities  of  the  members.  The  principal 
forms  which  these  associations  take  are  partnerships  and  corpora- 
tions, between  which  there  are  several  important  distinctions. 
A  partnership  can  continue  in  existence  only  so  long  as  the  part- 
ners are  living,  but  a  corporation  is  permanent  and  is  not  in  the 
least  degree  dependent  upon  the  lives  of  its  original  members. 
Partnership  action  in  important  matters  may  require  unanim- 
ity; in  corporations,  the  will  of  a  majority  prevails.  Every 
member  of  a  firm  is  generally  Hable  for  all  the  partnership 
debts,  while  a  stockholder  of  a  corporation  is  usually  responsible 
for  no  more  than  the  par  value  of  his  stock.  Finally,  an  interest 
in  a  partnership  cannot  be  transferred  without  the  consent  of  the 
other  partners,  while  shares  in  a  stock  company  may  be  conveyed 
at  will. 

Civil  Procedure 

If  a  person  wishes  to  enforce  some  right,  which  he  thinks 
has  been  violated,  he  must  bring  an  action  in  a  court.  A  suit 
is  usually  commenced  by  the  plaintiff's  making  out  a  statement, 
called  the  complaint  or  declaration,  of  the  facts  on  which  the 
grievance  is  based,  which  is  served  on  the  defendant,  together 
with  a  summons  calling  upon  him  to  answer  within  a  certain 
time.  If  the  defendant  admits  the  facts  but  beUeves  that  the 
plaintiff  has  no  right  of  action,  he 'may  file  what  is  called  a  "de- 
murrer." An  argument  is  then  had  before  a  judge  on  the  ques- 
tion as  to  whether,  granting  the  facts  alleged  in  the  complaint 
to  be  true,  a  sufficient  cause  of  action  has  been  set  out.  The  other 
alternative  which  the  defendant  has  is  to  take  up  the  question 
of  fact.    He  must  then  serve  on  the  plaintiff  what  is  called  an 


564  American  Government  and  Politics 

answer,  or  plea,  either  denying  the  whole  or  a  portion  of  the  com- 
plaint, or  else  acknowledging  its  truth  and  setting  out  some 
affirmative  defence.  The  plaintiff  again  has  his  choice  of  de- 
murring to  its  sufficiency  or  replying  to  the  facts. 

In  states  where  the  original  common  law  procedure  prevails, 
this  interchange  of  pleadings,  as  these  various  statements  are 
called,  can  go  on  indefinitely  until  an  issue  is  reached,  one  of 
the  parties  affirming  some  fact  and  the  other  denying  it.  The 
various  codes  of  civil  procedure  frequently  Hmit  the  number  of 
steps  to  two  —  the  plaintiff's  complaint  and  the  defendant's 
answer;  but  sometimes  also  allow  the  plaintiff  to  reply  to  the 
answer. 

As  soon  as  its  turn  is  reached  the  case  comes  up  for  trial.  If 
it  is  a  suit  in  equity,  it  is  tried  by  a  judge  alone.  If  it  is  a  suit 
at  law,  it  is  generally  tried  before  a  judge  and  a  jury,  unless  a 
jury  trial  is  waived  by  agreement  of  the  opposing  sides.  In 
a  jury  trial,  the  duty  of  the  judge  ordinarily  is  to  regulate  the 
conduct  of  the  trial  and  to  pass  on  all  matters  of  law,  while  the 
function  of  the  jury  is  to  decide  questions  of  fact  under  the 
guidance  of  the  judge.^ 

If  the  case  is  to  be  tried  by  a  jury,  a  number  of  jurors  are 
summoned ;  these  are  examined  by  the  opposing  counsel ;  and  if 
it  is  shown  that  any  one  is  legally  exempt  or  incompetent  to 
serve  because  of  bias  or  otherwise,  the  judge  may  excuse  him. 
Besides  this,  each  side  may  challenge  a  certain  number  of 
jurors  without  stating  any  cause. 

When  the  jury  has  been  procured,  the  actual  trial  is  ready  to 
start.  Usually  the  plaintiff's  counsel  opens  by  describing  the 
nature  of  the  case  to  the  jury  and  stating  the  main  facts  which 
he  expects  to  prove.  He  then  calls  his  witnesses  and  examines 
them  one  by  one,  the  defendant's  attorney  being  given  an  op- 
portunity to  cross-examine  at  the  close  of  the  direct  examina- 
tion of  each  witness.  The  questions  that  may  be  asked  are 
strictly  regulated  by  compUcated  rules  of  evidence,  and  an  error 
on  the  part  of  the  judge  in  the  admission  of  improper  evidence 
or  the  exclusion  of  competent  testimony  is  ground  for  reversal 
of  the  judgment  on  appeal  to  a  higher  court. 

^    '  Taft,  Four  Aspects  of  Civic  Duty,  pp.  37  flf.;  see  Readings,  p.  490,  on  this 
important  pomt  of  the  relation  of  the  judge  to  the  jury. 


J 


The  Judicial  System  565 

After  the  plaintiff's  side  of  the  case  has  been  laid  down,  the 
lefendant's  side  is  presented  in  the  same  manner.  His  attorney 
nakes  a  statement  to  the  jury  and  then  examines  his  witnesses, 
he  counsel  for  the  plaintiff  being  allowed  to  cross-examine. 
?he  plaintiff  and  defendant  may  be  witnesses  if  they  wish 
^fter  the  defendant  rests,  the  plaintiff  may  introduce  evidence 
1  rebuttal,  and  then  the  defendant  may  bring  forth  testimony  in 
urrebuttal.  At  the  close  of  the  evidence  the  attorneys  for 
he  opposing  sides  may  address  the  jury. 

If  the  plaintiff  has  failed  to  make  out  a  prima  facie  case,  the 
Lidge  may  dismiss  the  complaint  without  sending  the  case  to 
he  jury.  Or  if  from  the  evidence  that  has  been  presented  only 
ne  conclusion  of  fact  is  possible,  the  judge  may  direct  the  jury 
0  return  a  verdict  in  accordance  with  that  conclusion.  If, 
nder  such  circumstances,  a  verdict  for  the  plaintiff  is  directed, 
he  only  question  to  be  decided  by  the  jury  is  the  amount  of 
amages  or  the  award.  But  if  there  are  controverted  questions 
f  fact,  as  is  usually  the  case,  decision  with  regard  to  them  is 
jft  to  the  jury.  The  judge  makes  a  charge  to  the  jury  in  which 
e  ordinarily  instructs  them  as  to  the  law  applicable  to  the  case.^ 

The  jury  then  retire  to  decide  upon  a  verdict.  They  must 
nd  a  verdict  either  for  the  plaintiff  or  defendant,  or  agree  to 
isagree;  and  if  they  decide  for  the  plaintiff,  they  must  also 
ssess  the  damages.  The  verdict  in  most  states  must  be  unani- 
lous,  and  if  the  jury  is  unable  to  agree,  the  case  must  be  re- 
ied  with  another  jury.^ 

If  the  case  is  tried  without  a  jury,  the  procedure  is  practically 
le  same,  except  that  the  judge  passes  upon  all  questions  himself, 
/here  the  case  is  complicated,  it  is  often  customary  to  send  it 
)  a  master  or  a  referee  to  take  testimony  and  to  make  a  tentative 
nding.  The  judge  then  goes  over  the  record  of  the  testimony 
nd  the  report  of  the  master  or  referee,  and  makes  a  final  decision. 

The  usual  remedy  that  a  person  gets  at  law  is  money  damages. 
.  judgment  for  the  amount  of  the  verdict  is  entered  against  the 
efendant.  If  he  does  not  pay  voluntarily,  an  "execution," 
r  an  order  to  the  sheriff,  may  be  issued.  Armed  with  the>x- 
:ution,  the  sheriff  or  one  of  his  deputies  takes  possession  of  the 

*  Readings,  p.  491. 

^  Unanimous  verdict  is  not  required  in  all  cases  in  all  states.    Readings, 

88. 


566  American  Government  and  Politics 

defendant's  property  and  sells  enough  at  auction  to  pay  th 
amount  of  the  judgment  to  the  plaintiff  and  his  own  charges 
Of  course,  if  the  defendant  should  be  a  man  without  property 
the  plaintiff  has  no  redress.  In  Utigation  over  title  to  real  estate 
however,  the  usual  judgment  is  that  the  plaintiff  enter  upon  th 
premises.  If  the  defendant  then  resists  the  plaintiff,  he  ma] 
be  evicted  by  force  by  the  sheriff. 

In  equity  cases  the  decision  of  the  court  is  called  the  decree 
It  does  not  ordinarily  award  money  damages,  but  orders  th( 
defendant  to  do  or  not  to  do  something.  The  decree  may,  fo 
instance,  command  him  to  carry  out  his  part  of  a  contract  anc 
convey  to  the  plaintiff  land  which  he  agreed  to  sell  to  him,  o: 
it  may  enjoin  him  from  maintaining  a  nuisance,  such  as  usin| 
soft  coal  in  his  furnace.  In  fact,  a  decree  in  equity  may  tak( 
on  any  one  of  innumerable  forms,  but  it  always  is  in  essence  i 
command  to  do,  or  an  order  not  to  do,  something.  If  the  de 
fendant  fails  to  obey  the  decree,  he  is  guilty  of  a  contempt  o 
court,  and  may  be  fined  or  imprisoned  until  he  complies  witl 
the  order. 

After  the  case  is  decided,  the  losing  party  may  appeal 
(a)  because  of  errors  of  law  committed  by  the  judge  or  (b)  or 
the  ground  that  the  verdict  was  contrary  to  the  weight  o 
evidence.  The  side  that  loses  on  the  appeal  may  sometimes~carr} 
the  matter  still  higher,  until  the  case  finally  reaches  the  highes 
court  of  the  state  or  of  the  nation.^  The  highest  court  usualb 
passes  only  on  questions  of  law.^ 

If  the  highest  court  which  the  case  can  reach  affirms  the  judg 
ment  of  the  trial  court,  that  ends  the  Utigation.  But  if  th 
judgment  is  reversed,  the  case  is  usually  sent  back  for  a  neA| 
trial.^  Then  the  party  that  loses  on  the  second  trial  may  agai 
compel  his  adversary  to  run  the  gauntlet  of  the  appellate  court 
because  of  alleged  errors  committed  in  this  trial.     If  the  jud^ 

^For  the  conditions  of  appeal  to  federal  courts,  see  above,  chap  xv. 

^The  appellate  courts  always  consist  of  several  judges,  and  the  opinion 
each  case  is  written  by  one  of  them.  The  opinions  of  the  highest  court 
each  state,  and  sometimes  those  of  some  of  the  inferior  courts,  are  pubhsh« 
and  become  precedents  for  future  decisions.  If  one  or  more  of  the  judg 
disagree  from  the  opinion  of  the  majority  of  the  court,  a  dissenting  opinic 
may  be  handed  down.  In  most  states  there  are  special  reporters,  whci 
duty  consists  in  publishing  the  official  reports  of  the  decisions  of  the  cour 

3  See  below,  p.  567. 


The  Judicial  System  567 

ment  is  again  reversed,  a  third  trial  must  be  had  and  the 
same  process  may  be  repeated.  If  the  party  that  loses  at  each 
stage  desires  to  appeal,  there  is  no  way  of  ending  the  Utigation 
until  some  judgment  of  the  trial  court  is  affirmed  on  appeal. 

In  some  instances  this  freedom  of  appeal  results  in  a  practical 
denial  of  justice.  Thus  there  is  one  case  on  record  in  New  York 
which  was  in  the  courts  for  twenty  years.  In  1882  a  brakeman 
who  was  injured  while  in  the  service  of  a  railroad  brought  suit 
against  the  company.^  In  1884  he  recovered  $4000  damages, 
but  two  years  later  the  verdict  was  reversed  on  appeal.  On  a 
new  trial  he  got  a  verdict  for  $4900.  This  was  appealed  to  two 
courts  successively.  The  first  affirmed  and  the  second  reversed 
the  judgment.  The  company  was  successful  at  the  third  trial 
in  1889.  Two  appeals  by  the  brakeman  followed,  the  court  of 
last  resort  deciding  in  his  favor  in  1897.  The  case  was  then 
tried  for  a  fourth  time,  and  the  brakeman  recovered  $4500. 
The  company  then  appealed  and  met  with  success.  A  fifth 
trial  was  necessary,  and  the  jury  awarded  the  plaintifif  $4900 
damages.  The  judgment  was  again  set  aside  on  appeal.  A 
sixth  trial  followed  with  the  same  result.  In  1902  the  seventh 
and  last  trial  took  place.  The  plaintiff  recovered  $4500. "  The 
company  again  appealed,  but  was  unsuccessful.  This  finally 
put  an  end  to  the  litigation. 

H.This  is,  of  course,  an  extreme  case  and  similar  cases  are  rarely 
found  in  our  legal  history.  Appeals  are  generally  taken  only 
when  the  counsel  in  the  case  feels  that  there  is  a  fair  chance  of 
success  or  of  wearing  out  the  opposing  party.  A  majority  of 
appeals  are  unsuccessful,  and  it  is  only  a  small  minority  of  cases 
that  have  to  be  tried  more  than  once. 

Nevertheless,  the  freedom  of  appeal  and  the  consequent  law's 
delay  have  been  made  the  subject  of  severe  criticism.^  Delays 
in  civil  cases  are  far  more  frequent  than  in  criminal  cases,  and, 
as  has  been  truthfully  remarked,  often  amount  to  a  denial  of 
justice.  But,  on  the  other  hand,  it  is  hardly  practicable  to  re- 
strict the  freedom  of  appeals  without  making  arbitrary  rules 
that  would  be  bound  to  work  injustice  at  times.  To  allow  ap- 
peals only  in  controversies  involving  large  amounts  would  be 

*  Baldwin,  The  American  Jttdiciary,  pp.  366-367. 
^Readings,  p.  500. 


568  American  Government  and  Politics 

undemocratic  and  give  unjust  privileges  to  wealthy  litigants.] 
Moreover,  cases  that  are  of  comparatively  trifling  pecuniary^ 
value  sometimes  involve  legal  principles  of  great  importance] 
that  should  be  passed  upon  by  the  higher  courts. 

It  has  been  suggested  that  appeals  should  not  be  made  a  matter 
of  right,  as  they  are  to-day,  and  that  no  appeal  should  be  allowed 
unless  permission  is  granted  by  the  trial  judge  or  by  the  appellate 
court.  However,  it  is  pointed  out  that  such  a  system  would  be 
hkely  to  result  frequently  in  a  denial  of' the  right  of  appeal  in  cases 
in  which  injustice  had  been  done  and  should  be  righted  by  a 
higher  tribunal. 

Generally,  when  an  appellate  court  reverses  a  judgment,  it 
has  the  power  to  enter  a  final  judgment  for  the  other  party. 
This  power  is  rarely  exercised,  however,  and  the  case  is  usually 
sent  back  for  a  new  trial.  In  some  instances,  a  new  trial  is  in- 
evitable, as  when  the  proof  of  essential  facts  has  been  shut  out 
at  the  trial  or  damages  have  been  assessed  on  an  improper  basis. 
But  very  often  the  appellate  court  has  sufficient  data  on  the 
record  before  it  to  make  a  final  disposition  of  the  case.  If  this 
were  done  whenever  it  is  possible,  one  of  the  largest  sources  of 
delays  would  be  aboHshed  without  any  revolution  in  our  legal 
system. 

Criminal  Law  ^ 

We  have  briefly  surveyed  the  principal  wrongs  against  which 
the  state  protects  the  individual,  and  have  examined  the  methods 
for  redressing  them.  We  must  now  consider  another  class  of 
wrongs  —  pubHc  wrongs,  or  wrongs  against  the  state  or  com- 
munity. Wrongful  acts  included  within  this  class  are  known 
as  "crimes,"  and  are  punished  by  the  state.  While  in  most 
cases  these  acts  primarily  harm  some  person,  they  are  also 
regarded  as  injuring  the  state,  because  the  state  has  an  interest 
in  the  safety  of  the  lives  and  property  of  its  citizens. 

Inasmuch  as  a  criminal  act  may  at  the  same  time  contain  the 
elements  of  a  civil  injury,  a  person  guilty  of  a  crime  may  lay  him- 
self open  to  a  suit  for  damages  as  well  as  to  punishment.  Thus 
if  one  person  assaults  another,  he  may  be  prosecuted  by  the 
state  as  a  criminal  and  also  sued  for  damages  by  the  injured 
party. 

^  Reference  :  May,  Criminal  Law. 


The  Judicial  System  569 

All  crimes  are  divided  into  two  classes;  felonies  and  mis- 
demeanors. The  former  includes  all  graver  offences,  generally 
those  punished  by  death  or  by  confinement  in  a  state's  prison. 
All  lesser  offences  constitute  the  second  class.  They  are  or- 
dinarily punished  by  fines  or  imprisonment  in  a  penitentiary  or 
county  jail  for  comparatively  short  terms.  ^ 

The  principal  felonies  are  murder,  manslaughter,  arson, 
burglary,  robbery,  and  larceny.  Murder  is  the  intentional, 
and  manslaughter  the  unintentional,  kilHng  of  a  human  being. 
In  some  states  murder  is  divided  into  degrees  according  as  it 
is  premeditated  or  unpremeditated.  Manslaughter  may  take 
any  number  of  forms  and  sometimes  is  also  divided  into  degrees. 
Thus  if  a  person  dies  as  a  result  of  a  blow  which  was  not  in- 
tended to  cause  death,  or  if  he  is  run  over  and  killed  by  an  auto- 
mobile because  of  the  negUgent  driving  of  the  chauffeur,  or  if 
he  meets  his  death  in  a  railroad  wreck  brought  about  by  the 
failure  of  the  proper  employee  of  the  company  to  give  the  re- 
quired signals  or  set  the  switch,  the  act  in  each  case  consti- 
tutes manslaughter.  Intentional  killing  in  a  sudden  heat  of 
passion  caused  by  adequate  provocation  is  also  generally  re- 
garded as  manslaughter  and  not  murder. 

Arson  is  wilful  and  maHcious  burning  of  a  dwelling-house. 
Any  incendiarism,  however  sHght,  is  sufficient  to  constitute 
the  crime.  Burglary  consists  in  breaking  and  entering  into  the 
house  of  another  with  the  express  intention  of  committing  some 
felony  therein.  It  makes  no  difference  whether  the  person 
actually  commits  some  crime  within  the  building:  the  break- 
ing and  entering  is  itself  burglary.  Robbery  is  taking  another's 
property  from  his  person  or  in  his  presence  by  force.  Picking 
a  man's  pocket  so  that  he  is  not  aware  of  what  is  being  done  is 
not  robbery,  but  larceny;  but  taking  money  from  a  person  at 
the  point  of  a  pistol,  or  knocking  him  down  and  then  stealing 
something  from  him,  is  punishable  as  robbery.  Larceny  is  steal- 
ing the  personal  property  of  another.  All  the  various  forms 
of  theft  and  swindling  are  larceny,  and  it  is  often  divided  into 
grand  and  petty  larceny,  according  to  the  amount  stolen,  the 
former  being  a  felony  and  the  latter  a  misdemeanor. 

In  addition  to  the  felonies  enumerated  above,  many  other 

*  Conviction  of  a  felony  very  often  carries  with  it  the  loss  of  the  right  to 
vote. 


570  American  Government  and  Politics 


offences  are  often  made  felonies.  Forgery  is  generally  a 
felony.  It  consists  in  making  or  altering  a  written  instrument 
to  defraud  another.  Thus,  writing  another's  signature  on  a 
check  or  changing  the  amount  called  for  constitutes  forgery. 
Somewhat  akin  to  forgery  is  the  crime  of  counterfeiting  or  making 
false  money,  which  is  punishable  by  the  federal  government. 
Kidnapping  is  usually  made  a  felony.  Bigamy,  which  consists 
in  having  more  than  one  wife  or  husband  at  the  same  time,  is 
a  felony.  So  is  also  the  offence  of  perjury  or  the  wilful  giving 
of  false  testimony  while  testifying  under  oath  in  a  judicial  pro- 
ceeding. 

Other  offences  are  misdemeanors.  They  vary  greatly  in 
enormity  and  many  of  them  differ  in  the  several  states.  Mayhem, 
though  a  felony  in  some  states,  is  generally  a  misdemeanor. 
It  consists  in  violently  depriving  another  of  the  use  of  any  of 
his  members  or  often  of  any  permanent  physical  disfigurement 
inflicted  by  force.  Bribery  is  also  a  misdemeanor,  though  at 
times  it  is  made  a  felony.  So  is  knowingly  receiving  stolen  goods. 
MaHcious  hbel,  which  consists  in  defaming  another  in  print  or 
writing,  is  a  crime  and  is  punished  as  a  misdemeanor.  Assault 
and  battery,  disturbance  of  the  peace,  violations  of  the  pure  food 
laws,  the  use  of  false  weights  and  measures,  spitting  on  the  floor 
of  a  street  car  or  other  pubUc  conveyances,  and  other  miscellaneous 
offences,  are  misdemeanors.  In  fact,  the  whole  mass  of  minor 
offences  is  included  in  this  group. 

It  is  not  alone  for  offences  actually  committed  that  punish- 
ment is  inflicted.  It  often  happens  that  a  person  conceives  the 
design  of  committing  a  certain  crime  and  takes  some  steps  toward 
carrying  out  his  purpose,  but  is,  for  some  reason,  prevented  from 
effecting  it.  In  that  case  he  is  punished  for  the  attempt  to 
commit  the  crime.  Of  course,  a  less  punishment  is  inflicted 
for  an  unsuccessful  attempt  than  for  the  crime  itself.  Thus  a 
person  intending  to  kill  another  might  shoot  at  him,  but  miss 
his  aim;  he  is  then  guilty  of  an  attempt  to  commit  murder. 

Not  only  the  principals  who  actually  commit  a  crime  are 
punishable  for  it ;  their  accompKces  are  liable  as  well.^  Ac- 
complices are  of  two  classes:  accessories  before  the  fact  and 
accessories  after  the  fact.  The  former  category  includes  any  one 
who  in  any  way  advises,  encourages,  or  assists  in  the  prepara- 
^  Readings,  p.  449. 


I 


The  Judicial  System  571 

tion  for  the  crime  which  is  afterward  committed.  In  some 
states,  accessories  before  the  fact  are  put  in  the  same  group  with 
principals  and  are  punished  as  such.  An  accessory  after  the 
fact  is  one  who  assists  in  the  escape  of  the  offender  after  the  crime 
has  been  committed,  or  helps  to  cover  up  the  crime. 

To  be  convicted  of  a  crime,  a  person  must  have  a  criminal 
intent.  This  is  ordinarily  presumed.  But  a  small  child  can- 
not have  such  an  intent  and  his  acts  do  not  constitute  crimes. 
An  insane  person  is  also  not  responsible  for  his  acts.  But  legal 
tests  of  insanity  are  much  stricter  than  medical  tests,  and  often 
persons  considered  lunatics  by  medical  men  are  held  to  be  sane 
in  law.  An  intoxicated  person  is  responsible  for  his  crimes, 
volimtary  drunkenness  being  no  excuse. 

Criminal  Procedure 

While  civil  actions  are  brought  by  the  injured  party,  criminal 
prosecutions  are  conducted  by  a  prosecuting  officer  in  the  name 
of  the  state.  A  criminal  proceeding  ordinarily  begins  with  the 
arrest  of  the  offender.  The  arrest  may  be  either  by  warrant 
or  not.  A  poHce  officer  or  a  private  individual  may  make  a  com- 
plaint before  a  magistrate  who  will  thereupon  issue  a  warrant 
or  order  of  arrest  against  the  person  so  accused.  But  in  many 
cases  an  arrest  may  be  made  without  a  warrant,  particularly 
when  the  crime  is  committed  in  view  of  the  person  who  appre- 
hends the  criminal,  or  when  the  officer  making  the  arrest  knows 
that  a  felony  has  been  committed  and  has  reasonable  grounds 
for  beUeving  that  the  one  whom  he  is  taking  into  custody  com- 
mitted the  offence.  The  exact  rules  defining  the  cases  in  which 
an  arrest  may  be  made  without  a  warrant  vary  in  the  several 
states. 

After  a  person  is  arrested,  he  is  brought  before  a  magistrate^ 
as  soon  as  possible.  The  proper  official  examines  the  case  and 
hears  whatever  evidence  may  be  produced;  but  neither  at  this 
examination  nor  at  any  subsequent  stage  of  the  proceedings  may 
the  accused  person  be  questioned,  unless  he  himself  desires  to 
testify.  This  is  one  of  the  cardinal  principles  of  the  English  and 
American  criminal  procedure  and  is  one  of  the  main  distinctions 
between  the  Anglo-American  system  and  that  in  vogue  on  the 

*  For  the  writ  of  habeas  corpus,  see  above,  p.  302. 


572  American  Government  and  Politics 

continent  of  Europe  where  the  accused  may  be  and  usually  is 
interrogated.^ 

If  the  magistrate  before  whom  the  prisoner  is  arraigned  finds 
that  there  is  probable  cause  for  holding  him  for  trial,  he  commits 
him  to  jail  imtil  further  proceedings  are  had,  at  the  same  time 
allowing  him  to  give  bail  if  he  so  desires,  unless  the  accusation 
is  one  of  murder.  By  giving  bail  is  meant  that  one  or  two  in- 
dividuals, called  sureties,  sign  a  bond  obUgating  himself  or  them- 
selves to  pay  a  certain  sum  of  money  to  the  state  or  county  if 
the  accused  person  fails  to  appear  when  his  case  is  called  for 
trial. ^    If  bail  is  given,  the  person  is  released. 

The  case  (unless  it  is  a  petty  offence)  is  now  ready  to  enter 
upon  the  next  stage  of  the  proceedings,  namely,  indictment  by 
the  grand  jury,  before  whom  the  matter  is  presented  by  the 
prosecuting  attorney.  The  grand  jury  is  one  of  the  oldest  in- 
stitutions of  the  common  law  and  for  a  long  time  it  was  cherished 
as  a  safeguard  against  needless  and  oppressive  prosecutions. 
It  is  a  body  of  men  drawn  at  the  beginning  of  each  term  of  court 
from  qualified  inhabitants  of  the  county.  It  passes  on  all  ac- 
cusations, and  if  it  decides  that  there  is  sufficient  evidence  which, 
if  unrebutted,  will  probably  convict  the  accused,  it  finds  an 
"indictment"  against  him  and  the  case  will  then  go  to  trial. 
If  the  grand  jury  determines  that  the  evidence  is  insufficient, 
the  charge  is  dismissed  and  the  prisoner  is  released  from  jail  or 
his  bondsmen  are  discharged,  as  the  case  may  be. 

The  proceedings  of  the  grand  jury  are  secret  and  it  hears  only 
one  side  of  the  case,  —  the  prosecution.  The  evidence  is 
generally  presented  by  the  prosecuting  attorney,  who  also  pre- 
pares the  bill  of  indictment,  and  if  the  grand  jury  decides  to 
indict,  it  indorses  the  fact  on  the  bill.  The  decision  of  the 
grand  jury  need  not  be  unanimous,  as  is  the  case  with  petty  or 
trial  juries,  but  a  majority  vote  of  the  whole  body  is  sufficient. 
The  grand  jury  is  not,  limited  to  passing  on  matters  presented 
to  it  by  the  prosecuting  attorney,  but  may  undertake  investi- 
gations of  its  own.  It  does  not  often  do  so,  however.  While 
cases  usually  begin  with  the  arrest  of  the  accused,  it  frequently 

^  These  principles  are  now  often  most  grossly  violated  in  the  United 
States  by  the  "  third  degree  "  practice  of  "  sweating  "  prisoners. 

*The  amount  of  the  bond  varies  with  the  enormity  of  the  offence 
the  probability  of  escape. 


ice  an^l 

J 


The  Judicial  System  573 

happens  that  an  accusation  is  presented  first  before  a  grand  jury, 
and  in  that  event,  of  course,  there  is  no  preliminary  examina- 
tion before  a  magistrate. 

In  some  states  indictment  by  grand  jury,  even  in  serious  crimes, 
is  not  necessary  to  bring  a  person  to  trial,  but  the  same  result 
is  accomplished  by  "information"  ^ ;  that  is,  by  an  accusation 
brought  by  the  prosecuting  attorney.  This  procedure  gives  more 
influence  to  the  prosecuting  attorney,  as  he  then  has  the  sole 
power  to  determine  whether  a  case  should  be  brought  to  trial 
or  not.  Prosecution  by  information  is,  however,  generally  em- 
ployed for  minor  offences. 

After  a  person  is  indicted,  he  is  brought  before  the  court,  the 
charge  is  read  to  him,  and  he  is  directed  to  plead.  If  he  pleads 
guilty,  no  further  proceedings  are  had,^  and  the  judge  imposes 
sentence  either  at  once  or  at  some  later  date.  If  he  pleads  not 
guilty,  a  trial  is  accorded  to  him.  When  the  date  set  for  the 
trial  arrives,  the  cause  is  called  before  the  judge  holding  the 
court.  The  first  step  consists  in  impanelling  a  jury  of  twelve 
men.  The  various  jurors  summoned  are  examined  in  turn  by 
the  prosecuting  attorney  and  the  defendant's  counsel,  until 
finally  the  jury  is  selected.  The  process  is  at  times  a  long 
one,  particularly  in  important  and  sensational  cases.  Any 
juror  who  states  that  he  has  formed  a  definite  opinion  about  the 
case  is  incompetent  to  serve,  and  this  rule  excludes  a  good  many 
men  in  a  case  which  has  attracted  much  attention  and  has  been 
discussed  by  newspapers.  In  addition  to  this,  each  side  may 
challenge  a  certain  number  of  jurors  peremptorily  without 
giving  any  reason.^ 

After  a  jury  is  thus  selected,  the  prosecuting  attorney  opens 
his  case,  inasmuch  as  the  defendant  is  presumed  to  be  innocent 
and  the  burden  is  on  the  prosecution  to  prove  him  guilty.  In 
his  opening  speech,  he  generally  describes  the  circumstances  under 
which  the  alleged  crime  was  committed  and  states  by  what  evi- 

*  Readings,  p.  88. 

^  A  man  cannot  plead  guilty  of  murder  in  the  first  degree,  however,  for  some 
form  of  trial  must  be  employed  in  such  a  serious  case. 

3  The  old  process  of  selecting  jurymen  has  been  severely  criticised  within 
recent  years  on  account  of  the  great  expense  and  waste  of  time.  In  the 
Gilhooly  case  in  Chicago  it  took  three  months  to  secure  a  jury  and  the  costs 
of  that  process  to  Cook  county  are  estimated  at  $i 8,000. 


574  American  Government  and  Politics 


1 

Dros^" 


dence  he  expects  to  prove  the  guilt  of  the  prisoner.     The  pros( 
cuting  attorney  then  summons  his  witnesses  one  by  one,  and 
examines  them  about  the  facts  of  the  case.    As  he  finishes  with™ 
each  witness  the  defendant's  attorney  may  cross-examine.       ^ 

The  questions  that  may  be  asked  of  the  witnesses  are  Hmited 
by  rules  of  evidence,  so  that  no  irrelevant  matter  may  be  brought 
in,  and  the  witness  may  be  confined  to  testimony  about  the 
facts  with  which  he  is  personally  acquainted.  The  purpose  of 
these  rules  is  to  prevent  the  jury  from  being  misled  or  prejudiced 
/  by  facts  that  are  not  closely  connected  with  the  case.  If  either 
lawyer  believes  that  the  other  is  asking  an  improper  question, 
he  may  object,  and  the  judge  then  decides  whether  the  question 
should  be  allowed  or  not.  If  the  lawyer  against  whom  th^— 
court  rules  is  dissatisfied,  he  takes  an  "  exception.  "  jH| 

After  the  prosecution  completes  the  presentation  of  its  side 
of  the  case,  the  attorney  for  the  prisoner  presents  the  other  side 
in  about  the  same  manner.  He  first  makes  an  opening  statement 
to  the  jury,  and  then  calls  and  examines  his  witnesses,  one  by 
one,  the  prosecuting  attorney  being  given  a  chance  to  cross- 
examine  as  soon  as  each  direct  examination  is  finished.  The 
prisoner  is  not  questioned  at  any  stage  of  the  trial  unless  he 
wishes  to  go  on  the  stand  as  a  witness  in  his  own  behalf,  and  in 
that  event,  the  prosecuting  attorney  may  cross-examine  him  in 
the  same  way  as  all  the  other  witnesses  for  the  defence. 

After  the  taking  of  testimony  is  ended,  the  prosecuting  and 
defending  counsel  make  speeches  to  the  jury;  and  upon  their 
completion,  the  judge  delivers  his  charge.  He  sums  up  the 
"evidence  brought  out  by  each  side,  and  states  to  the  jurors  what  is 
the  law  applying  to  the  case  before  them.  Thus,  he  tells  them 
what  must  be  shown  in  order  to  constitute  the  crime  with  which 
the  defendant  is  charged,  describes  the  different  degrees  of  that 
crime  (if  the  particular  offence  happens  to  be  divisible  into  de- 
grees), and  states  how  much  proof  is  necessary.  The  jury  must 
feel  convinced  beyond  a  reasonable  doubt  that  the  defendant 
is  guilty  in  order  to  convict;  otherwise  it  must  find  a  verdict 
^  of  not  guilty. 

When  the  judge  finishes  his  charge,*  the  jurors  retire  to  deliber- 
ate.    They  must,  as  a  rule,  arrive  at  a  unanimous  verdict,  and 

^  If  either  lawyer  is  dissatisfied  with  any  part  of  the  charge  he  again 
"  excepts." 


The  Judicial  System  575 

often  that  takes  many  hours.^  If  they  are  absolutely  unable 
to  agree,  they  are  discharged,  and  the  prisoner  has  to  be  tried 
again.  When  the  jury  comes  to  an  agreement,  it  returns  to  the 
courtroom  and  the  foreman  announces  its  verdict  —  guilty  or 
not  guilty.  If  the  defendant  is  found  not  guilty,  he  is  dis- 
charged at  once.  If  he  is  convicted,  the  judge  imposes  sen- 
tence either  immediately  or  at  some  future  date. 

The  punishment  for  most  crimes  is  imprisonment.  For  minor 
offences  a  fine  is  often  imposed,  and  sometimes  the  sentence 
consists  of  a  combination  of  both.  The  term  of  imprisonment 
varies  from  a  short  confinement  in  the  county  jail  or  penitentiary 
to  imprisonment  at  hard  labor  in  a  state's  prison  for  life.  The 
law  generally  lays  down  minimum  and  maximum  limits  of  punish- 
ment for  the  various  offences,  and  the  trial  judge  has  full  dis- 
cretion in  imposing  any  punishment  within  those  Hmits.  In 
some  southern  states  convicts  are  compelled  to  work  in  the  open 
air  in  chain-gangs.  At  times  they  have  been  turned  over  to 
private  employers  to  work  for  wages  paid  to  the  state;  but  this 
system  has  given  rise  to  great  cruelty  and  is  being  abolished  be- 
cause it  is  revolting  to  an  enlightened  public  opinion. 

For  good  behavior  the  prisoner  usually  receives  a  substantial 
reduction  in  the  term  of  his  sentence,  and  it  often  happens  that 
he  is  pardoned  by  the  governor  before  his  term  ends,  if  there  are 
extenuating  circumstances  warranting  mercy.^  A  new  system 
of  punishment  known  as  the  "indeterminate  sentence"  has  been 
introduced  in  some  states  in  recent  years.  Under  this  method 
the  judge  imposes  a  minimum  and  maximum  term,  and  whether 
the  prisoner  is  released  at  the  close  of  the  minimum  term  or  is 
kept  in  prison  longer,  possibly  until  the  expiration  of  the  maximum 
term,  depends  on  his  behavior  and  on  the  promise  of  reform  that 
his  conduct  shows.  If  he  is  liberated  before  the  close  of  the 
maximum  term,  he  is  generally  kept  on  probation  for  a  while 
and  is  obliged  to  report  to  the  prison  officials  at  stated  intervals, 
or  to  special  probation  officers. 

For  murder  the  death  penalty  is  infficted  in  most  states,  and 
in  a  few  commonwealths  it  is  also  imposed  for  some  other  crimes. 

'  In  a  few  states  in  the  West  a  verdict  by  nine  or  ten  out  of  the  twelve 
jurors  is  allowed  in  some  cases;   Readings,  p.  88. 

^For  an  excellent  illustration,  see  Readings,  p.  448;  on  the  pardoning 
power,  above,  p.  498. 


576  American  Government  and  Politics 

Execution  is  generally  carried  out  by  hanging,  but  in  a  small 
number  of  commonwealths  electrocution  has  been  substituted 
for  hanging,  as  a  more  humane  and  less  painful  method  of  putting 
to  death.  There  are  a  few  states  —  Maine,  Michigan,  Wisconsin, 
Rhode  Island,  and  Kansas  —  in  which  capital  punishment  has 
been  entirely  abohshed.  Opponents  of  the  death  penalty  claim 
that  the  fear  of  death  does  not  diminish  the  percentage  of  crimes, 
and  that  juries  are  reluctant  to  convict  where  they  know  that 
the  penalty  will  be  death,  often  convicting  of  a  less  degree  so 
that  the  prisoner  may  be  punished  by  imprisonment.  Although 
cases  in  which  innocent  persons  are,  by  a  miscarriage  of  justice, 
put  to  death  are  exceedingly  rare,  still  a  few  are  on  record,  and 
a  mistake  may  be  made  at  any  time  on  account  of  the  circumstan- 
tial character  of  the  evidence  frequently  admitted.  Finally,  the 
reformation  of  the  offender,  as  well  as  the  protection  of  society 
—  not  retaUation  —  is  the  end  of  enlightened  punitive  justice, 
and  the  death  penalty  is  altogether  inconsistent  with  such  a 
humane  notion. 

When  the  prisoner  has  been  found  guilty  and  sentenced,  his 
resources  are  not  yet  at  an  end.  He  may  appeal  to  a  higher  tri- 
bunal if  any  mistakes  have  been  made  by  the  trial  judge.  Any 
alleged  error  in  the  admission  or  exclusion  of  evidence  or  any  in- 
correct statement  of  the  law  applicable  to  the  case  made  in  the 
judge's  charge,  is  ground  for  reversal.  If  the  appeal  is  decided 
against  the  prisoner,  he  may,  in  some  instances,  carry  the  case 
still  higher,  until  finally  it  is  passed  upon  by  the  highest  court 
of  the  state  or  by  the  Supreme  Court  of  the  United  States,  if  a 
federal  question  is  involved.  If  he  wins  on  the  appeal,  a  new 
trial  is  usually  granted,  and  the  case  is  sent  back  for  a  rehearing 
to  the  court  in  which  it  was  originally  tried.  *  If  he  loses  his  appeal, 
the  defendant  must  acquiesce  in  the  sentence,  unless  the  governor 
can  be  persuaded  to  pardon  him. 

A  great  deal  of  criticism  has  been  evoked  against  the  liberahty 
of  the  system  of  appeals  in  criminal  as  well  as  civil  procedure  and 
the  consequent  failure  of  justice.  While  it  cannot  be  denied  that 
verdicts  are  too  frequently  reversed  for  purely  technical  reasons, 
which  could  not  have  possibly  injured  the  defendant,  the  evil 
is  not  as  extensive  as  it  is  often  supposed  to  be.  Thus  in  New 
York  County,  during  the  five  years  from  1898  to  1902  inclusive, 
about  11,000  persons  were  convicted  of  felonies,  of  whom  less 


The  Judicial  System  577 

than  nine  in  a  thousand  took  an  appeal;  of  these,  less  than  a  third 
were  successful.^  But  the  cases  that  attract  public  notice  be- 
cause of  their  sensationalism  are  generally  the  ones  in  which  delays 
incident  to  appeals  occur.  In  a  good  many  instances  in  which 
verdicts  have  been  reversed,  obvious  injustice  had  been  done  to  the 
appellant.  This  is  particularly  true  where  evidence  offered  in 
his  defence  has  been  wrongfully  excluded  by  the  trial  judge, 
where  the  prosecution  has  failed  to  make  out  a  prima  facie  case 
and  show  facts  sufficient  to  constitute  the  offence,  and  where  the 
trial  judge  has  made  a  serious  mistake  in  his  charge  to  the  jury. 
Nevertheless,  in  a  considerable  number  of  reversals,  the  errors 
are  purely  technical  and  do  not  involve  at  all  principles  of  strict 
justice. 

The  remedy,  however,  does  not  consist  in  a  narrow  limitation  of 
the  system  of  appeals.  If  the  prisoner  has  no  absolute  right  to 
appeal,  there  will  be  cases  of  wrongs  committed  at  the  trial  which 
will  never  be  righted.  But  the  appellate  courts  should  adopt  the 
practice  of  refusing  to  reverse  a  verdict  if  the  errors  complained 
of  are  not  of  such  a  nature  as  could  have  prejudiced  the  defendant 
in  the  eyes  of  the  jury.  Finally,  a  good  many  of  the  delays  and 
technicalities  of  legal  procedure  will  be  avoided  if  at  the  trial  the 
judge  exercises  a  greater  amount  of  control  over  the  proceedings, 
as  is  done  in  England,  and  to  a  less  extent  in  the  federal  courts.^ 

'  Harvard  Law  Review,  Vol.  XVII. 
^Taft,  Four  Aspects  of  Civic  Duty,  p.  50. 


^ 


CHAPTER  XXVII 

THE  ORGANIZATION  OF  MUNICIPAL   GOVERNMENT 

Mr.  Bryce,  in  his  chapter  on  the  working  of  American  city 
governments,  remarks  that  "there  is  no  denying  that  the  gov- 
ernment of  cities  is  the  one  conspicuous  failure  of  the  United 
States."  If  we  accept  this  statement  even  without  quaUfication, 
we  must  remember  the  special  difficulties  which  are  associated 
with  municipal  government  in  the  United  States.  In  the 
first  place,  our  cities  are  of  recent  and  rapid  development,  and 
are  intimately  involved  with  the  remarkable  and  heedless  advance 
of  industry  and  commerce  which  accompanied  the  opening  up  of 
the  country.  When  Washington  was  inaugurated,  only  about 
one-thirtieth  of  the  population  Hved  in  cities  of  over  8000,  and  in 
a  little  more  than  a  hundred  years  one-third  of  the  inhabitants 
have  become  city  dwellers. 

It  must  be  remembered,  also,  that  a  great  portion  of  the  city 
dwellers  are  collected  from  all  the  nationalities  of  the  globe.  The 
census  of  cities  of  25,000  inhabitants  and  over,  in  1900,  showed 
that  no  less  than  26  per  cent  were  of  foreign  birth,  to  say  nothing  of 
those  who  were  of  immediate  foreign  descent.  In  New  York  City, 
the  percentage  of  foreign-bom  was  37;  in  Chicago  it  was  34.6; 
in  Lawrence,  Massachusetts,  45.7;  and  in  Woonsocket,  Rhode 
Island,  it  reached  44.4.^  To  this  alien  group  must  be  added  the 
negroes,  who,  while  numerically  insignificant  in  many  northern 
cities,  constitute  a  large  portion  of  most  southern  cities  —  56.5 
per  cent  in  Charleston,  South  Carolina.  To  the  cities  have 
been  attracted  also  large  numbers  of  the  shrewd  and  ambi- 
tious inhabitants  of  the  country  districts  largely  in  pursuit  of  eco- 
nomic gain.  ^1 

^  In  spite  of  these  astounding  figures  it  must  also  be  noted  that  the  per- 
centage of  aliens  is  really  declining  in  our  cities.  See  Goodnow,  Municipal 
Government,  pp.  25  fif. 

578 


J 


The  Organization  of  Municipal  Government     579 

Thus  our  cities  are  really  vast  conglomerations,  composed  of 
peoples  of  every  nationality,  and  of  the  keenest  and  most  enter- 
prising natives;  their  populations  are  constantly  shifting,  besides 
being  augmented  by  the  inflow  of  foreigners.  They  are  largely 
without  civic  traditions;  their  governments  offer  unparalleled 
opportunities  for  spoils  and  private  gain  to  the  politicians  and 
sharp  hunters  of  franchises  and  special  privileges;  and  it  is  small 
wonder,  therefore,  that  up  to  the  present  time  the  problem  of 
American  municipal  government  has  not  been  solved  to  the  satis- 
faction of  any  one. 

The  City  and  the  State 

Before  taking  up  the  study  of  the  structure  of  municipal  govern- 
ment in  the  United  States,  it  is  necessary  to  consider  the  position 
of  the  city  as  a  local  unit  in  the  government  of  the  state.  The 
American  city,  in  all  except  a  very  few  commonwealths,^  is 
largely  subject  to  the  state  legislature,  which  creates  its  charter  in 
the  first  place,  establishes  its  form  of  government,  fixes  its  powers, 
and  from  time  to  time  imposes  new  institutions  on  top  of  those 
created  under  the  charter.  Thus  the  city  Ues  completely  at  the 
mercy  of  the  legislature,  save  where  protected  by  constitutional 
provisions,  and  thus  municipal  affairs  are  drawn  inevitably  into 
the  current  of  state  politics.  This  situation  has  raised  the  vexa- 
tious question  of  municipal  "home  rule."  ^ 

It  is  urged  by  the  champions  of  municipal  home  rule —  practical 
autonomy  for  each  city  —  that  the  state  legislature  is  unfitted  to 
exercise  control  over  many  questions  which  affect  only  urban 
dwellers  because  it  does  not  have  the  requisite  time  to  look  into  the 
details  of  city  government  or  the  requisite  knowledge  of  the  prob- 
lems of  such  government,  and  does  not  feel  the  proper  responsibil- 
ity to  urban  constituencies.  Owing  to  the  constitutional  discrimi- 
nation against  cities  in  favor  of  the  rural  districts,"^  the  representa- 
tives of  rural  minorities  are  able  to  impose  upon  the  cities  laws  and 
institutions  wholly  unsuited  to  urban  conditions.  In  the  next 
place,  it  is  contended  by  the  advocates  of  home  rule  that  there 
are  a  number  of  purely  city  problems ,  which  cannot  have  any 

'  Below,  p.  583. 

^See  Goodnow,  Municipal  Home  Rttle,  and  Deming,  The  Government  of 
American  Cities.  ^  Above,  p.  520. 


580  American  Government  and  Politics 

considerable  interest  for  the  people  of  the  state  at  large.  They 
say,  for  example,  that  the  paving  and  lighting  of  the  streets, 
the  provision  of  means  of  transportation,  the  establishment  of 
waterworks,  the  maintenance  of  markets,  and  many  other  similar 
matters,  should  be  left  entirely  to  the  determination  of  the  munici- 
pal voters. 

To  these  contentions  the  reply  is  made  that  there  are  few, 
if  any,  purely  municipal  functions  which  have  no  general  interest 
for  the  state  at  large.^  If  the  city  wishes  to  establish  waterworks, 
it  must  go  sometimes,  as  New  York  City  has  gone,  a  hundred 
miles  or  more  into  the  country,  and  must,  therefore,  secure  water- 
sheds by  a  state  concession.  With  the  growth  of  the  means  of 
rapid  communication,  our  city  populations  have  spread  far  beyond 
the  boundaries  of  municipalities,  and  the  system  of  municipal 
transportation  accordingly  covers  far  more  than  the  areas  under 
city  government.  A  notable  example  of  this  is  New  York  City, 
which  is  really  the  urban  centre  for  a  vast  area  extending  fifty 
miles  or  more  in  every  direction.  Owing  to  the  large  number  of 
voters  in  the  municipalities,  the  integrity  of  the  whole  state  elec- 
tion may  depend  upon  the  effectiveness  with  which  the  municipal 
police  uphold  the  election  laws  and  secure  an  honest  count. 
Finally,  the  tenements,  industries,  health,  and  progress  of  each 
city  are  inextricably  woven  with  larger  state  and  even  national 
problems  of  the  land,  taxation,  natural  resources,  labor  legisla- 
lation,  and  social  control.  Speaking  generally,  therefore,  the 
state  at  large  has  a  fundamental  interest  in  the  health  and  well- 
being  of  the  city  dwellers,  and  accordingly  there  is  hardly  a  prob- 
lem of  municipal  government  that  is  not  vitally  connected  with  the 
larger  problems  of  state  government. 

Indeed,  Professor  Goodnow  has  shown,  by  a  survey  of  the  his- 
torical development  of  cities,  that  the  whole  tendency  of  modern 
times  is  away  from  that  autonomy  enjoyed  by  cities  in  the  Middle 
Ages.  He  points  out  that  matters  which  were  once  of  purely 
local  interest  have  now  become  general;  that  in  modern  life  com- 
merce and  industry  have  become  state  concerns;  and  that  it  is 
impossible  to  determine  arbitrarily  the  point  at  which  state  inter- 
est ends  and  municipal  interest  begins.  He  cites  the  example 
of  Massachusetts,  where  the  competition  of  many  cities  for  sources 

Readings,  p.  509. 


The  Organization  of  Municipal  Government     581 

of  water-supply  became  so  keen  that  the  state  had  to  interfere 
and  assume  general  control.  He  also  shows  that  what  may  be  a 
municipal  function  in  one  city  may  not  be  in  another,  citing,  as  an 
example  of  this,  Chicago  and  New  York — in  the  disposal  of  sew- 
age Chicago  uses  one  of  the  rivers  which  flows  through  the  state, 
and  thus  the  sewage  question  becomes  a  matter  of  state  concern; 
while  New  York  is  differently  situated  in  this  regard,  owing  to  the 
fact  that  it  can  discharge  its  sewage  into  the  ocean.  Professor 
Goodnow  concludes:  "Municipal  home  rule,  unless  those  words  are 
usedina  very  limited  sense,  has  no  just  foundation  in  either  history 
or  theory  until  the  conditions  of  city  populations  are  very  differ- 
ent from  what  they  are  at  present.  Municipal  home  rule  without 
limitation  is  a  shibboleth  of  days  that  are  past.  On  account  of  the 
reverence  in  which  it  is  held,  it  is  often  used  by  those  who  have 
not  the  true  interests  of  urban  populations  at  heart,  or  by  those 
who,  while  possessing  good  intentions,  perhaps  are  not  sufficiently 
acquainted  with  the  conditions  to  which  they  would  apply  it, 
and  certainly  do  not  consider  the  problem  in  the  light  of  the  history 
of  western  municipal  development."  ^ 

It  is  clear,  therefore,  that  the  limits  of  municipal  government 
cannot  be  fixed  for  any  state  or  any  city  by  a  general  rule  of  law; 
but  it  is  also  clear,  in  the  light  of  great  abuses  which  cities  have 
suffered  at  the  hands  of  our  state  legislatures,  that  some  check 
must  be  placed  upon  the  power  of  the  legislature  to  control  munici- 
pal affairs.  Several  plans  have  been  devised  to  meet  this  difficult 
problem. 

I.  The  constitutional  convention  of  Pennsylvania,  in  1873, 
sought  to  solve  the  problem  by  adopting  the  rule  that  the  state 
legislature  should  not  pass  any  local  or  special  laws  regulating  the 
affairs  of  counties,  cities,  townships,  wards,  boroughs,  or  school 
districts;  but  this  restriction  was  found  to  be  entirely  too  narrow, 
and  when  the  general  assembly  sought  to  legislate  for  the  city 
of  Philadelphia  alone  by  passing  a  law  which  should  apply  to  all 
cities  having  a  population  of  at  least  300,000,  the  court  pronounced 
this  action  constitutional.  The  court  held  that  it  could  not  have 
been  the  intention  of  the  f ramers  of  the  constitution  to  bolt  and 
rivet  down,  by  fundamental  law,  the  machinery  of  state  govern- 
ment in  such  a  way  that  it  could  not  perform  its  necessary  f unc- 

Municipal  Government,  p.  94. 


582  American  Government  and  Politics 

tions.  "If  the  classification  of  cities,"  said  the  court,  "is  ii 
violation  of  the  constitution,  it  follows  of  necessity  that  Philai 
delphia,  as  a  city  of  the  first  class,  must  be  denied  the  legislation^ 
necessary  to  its  present  prosperity  and  future  development,  or 
that  the  small  inland  cities  must  be  burdened  with  legislation 
wholly  unsuited  to  their  needs.  For  if  the  constitution  means 
what  the  complainants  aver  that  it  does,  Philadelphia  can  have 
no  legislation  that  is  not  common  to  all  other  cities  of  the  state.  .  .  . 
We  have  but  to  glance  at  this  legislation  [relating  to  quarantine, 
pilotage,  trade,  inspection,  etc;]  to  see  that  most  of  it  is  wholly 
unsuited  to  small  inland  cities  and  that  to  inflict  it  upon  them 
would  be  little  short  of  a  calamity.  Must  the  city  of  Scranton, 
over  a  hundred  miles  from  tide- water,  with  a  stream  hardly  large 
enough  to  float  a  bateau,  be  subjected  to  quarantine  regulations 
and  have  its  lazaretto?  Must  the  legislation  for  a  great  commer- 
cial and  manufacturing  city  with  a  population  of  more  than  a 
million  be  regulated  by  the  wants  or  necessities  of  an  inland  city 
of  10,000  inhabitants?  " 

2.  Recognizing  the  necessity  for  putting  limits  to  the  power  of 
the  state  legislature  to  control  cities  and  at  the  same  time  recog- 
nizing the  imperative  necessity  for  special  legislation.  New  York 
has  sought  to  give  the  cities  a  voice  in  legislating  upon  the  mat- 
ters especially  affecting  them.^  This  has  been  done  by  a  classifica- 
tion of  the  cities  of  the  state  into  three  groups  according  to  their 
populations  and  by  providing  that  special  laws  — that  is,  those 
relating  to  a  single  city  or  less  than  all  the  cities  of  a  class  —  must 
be  passed  in  conformity  to  the  following  principles:  When  any 
such  special  law  is  passed,  it  must  be  transmitted  to  the  mayor  of 
the  city  affected.  In  cities  of  the  first  class  (of  over  175,000  in- 
habitants) it  must  have  the  approval  of  the  mayor,  and  in  cities 
of  the  other  two  classes  the  approval  of  the  mayor  and  city  council, 
before  it  can  become  a  law.  If  the  bill  is  accepted  by  the  proper 
municipal  authority,  it  is  transmitted  to  the  governor  of  the 
state,  who  may  veto  it  or  approve  it,  as  he  sees  fit.  If  the  bill  is 
not  approved  by  the  local  authorities,  it  is  transmitted  to  the 
branch  of  the  legislature  in  which  it  originated,  and  may  become 
a  law  if  it  is  repassed  (at  that  session)  by  the  ordinary  majority 
in  both  branches. 

^  See  Readings,  p.  512,  on  this  important  topic. 


The  Organization  of  Municipal  Government     583 

This  constitutional  provision  is  further  elaborated  by  a  statute 
which  provides  that  when  any  such  law  is  transmitted  to  a  city, 
the  authority  which  has  the  right  of  approval  or  rejection  must  hold 
a  pubHc  hearing  on  the  measure,  after  having  given  due  notice 
by  publication  in  newspapers.  The  design  of  this  is  to  afford  to 
the  friends  and  opponents  of  the  measure  a  right  to  state  their 
reasons  for  its  approval  or  rejection.  This  method,  while  it  does 
not  vest  the  right  of  final  decision  in  the  city,  does  guard  against 
hasty  legislation,  assures  publicity,  and  gives  to  the  authorities 
of  the  city  some  weight  in  determining  the  course  of  state  legisla- 
tion.   Nevertheless  it  does  not  cure  the  evils  of  special  legislation. 

3.  A  third  method  of  controUing  the  state  legislature  was  pro- 
vided by  the  Missouri  constitution  of  1875,  which  gives  each  city 
having  a  population  of  more  than  100,000  inhabitants  the  right 
to  frame  a  charter  for  its  own  government  consistent  with  and 
subject  to  the  constitution  and  laws  of  the  state.  It  stipulates 
that  such  a  charter  shall  be  drafted  by  a  board  of  thirteen  free- 
holders elected  by  the  qualified  voters  of  the  city,  then  submitted 
to  the  approval  of  the  voters,  and  go  into  effect  on  receiving  four- 
sevenths  of  the  votes  cast  at  the  general  or  special  election  at 
which  it  may  be  submitted.  It  is  provided  further  that  all  such 
charters  shall  include  in  the  plan  of  government  a  mayor  and  a 
council  of  two  houses,  one  at  least  elected  on  a  general  ticket.* 

This  plan,  with  some  modifications,  has  been  adopted  by  Cali- 
fornia, ^  Oregon,  Washington,  Minnesota,  Colorado,  Oklahoma, 
and  Michigan.  "Probably  this  is  the  most  effective  method  of 
protecting  cities  against  legislative  interference,"  says  Professor 
Goodnow.  "In  their  interpretation  of  these  constitutional  pro- 
visions, however,  ...  the  courts  hold  that  the  privilege  of 
framing  its  own  charter  of  locaL  government  does  not  affect  the 
functions  of  government  which,  while  discharged  in  the  city/ 
interest  the  state  as  a  whole.  A  provision  of  this  sort  does  not, 
therefore,  prevent  the  state  from  interfering  with  the  police  force 
or  the  educational  system  of  cities,  since  these  branches  of  admin- 
istration are  regarded  as  state  rather  than  local  in  character."  ^ 
The    California   constitution,  however,  places  the  control  of 

*  There  are  also  some  special  provisions  for  the  city  of  St.  Louis. 
^  See  Readings,  p.  511,  for  the  provisions  of  the  California  constitution  on 
this  point. 

^  Municipal  Government,  p.  84. 


584  American  Government  and  Politics 

police,  police  courts,  education,  and  elections  within  the  com- 
petence of  the  city  charter-making  powers.  Since  this  amend- 
ment was  adopted  as  'a  check  upon  legislative  interference  in 
those  matters  it  is  to  be  assumed  that  the  legislature  is  excluded 
from  those  fields  if  the  city  sees  fit  to  preempt  them. 

4.  Among  the  constitutional  methods  devised  for  checking 
state  legislatures  and  at  the  same  time  permitting  desirable 
special  legislation  for  cities,  that  embodied  in  an  amendment  to 
the  Illinois  constitution,  adopted  in  1904,  is  important  because 
it  has  proved  effective.  That  constitution  has  the  usual  pro- 
vision against  the  incorporation  or  organization  of  cities,  towns, 
or  villages,  or  changing  or  amending  their  charters  by  local  or 
special  law.  To  permit  the  legislature  to  give  Chicago  special 
treatment  the  constitution  was  amended  in  1904  so  as  to  permit 
the  legislature  to  pass  "all  laws  which  it  may  deem  requisite 
to  effectually  provide  a  complete  system  of  local  municipal  gov- 
ernment in  and  for  the  City  of  Chicago."  However,  it  placed 
a  check  upon  this  power  of  special  legislation  for  Chicago  by 
providing  that  no  such  law  can  take  effect  until  approved  by  a 
majority  of  the  legal  voters  of  the  city  voting  thereon  at  any 
general,  special,  or  municipal  election.  Under  this  provision 
the  people  of  Chicago  rejected  a  special  charter  passed  by  the 
legislature  and  submitted  in  1907.  This  charter  was,  in  the 
main,  the  work  of  a  commission  of  Chicago  citizens  appointed 
for  that  purpose,  but  it  was  made  obnoxious  when  it  reached 
the  legislature  by  the  insertion  of  several  objectionable  fea- 
tures. This  legislative  action  caused  the  rejection  of  the 
charter  when  submitted  to  the  people.  So  far  as  one  can 
judge,  these  constitutional  provisions  enable  the  people  of 
Chicago  to  escape  objectionable  special  legislation,  while  the 
way  is  left  open  for  special  legislation  acceptable  to  them. 
They  may  not  be  able  to  get  what  they  want,  but  they  can  at 
least  escape  improper  legislation  ninless  it  is  embodied  in  gen- 
eral laws.^ 

The  City  Council  ^ 

Turning  now  from  the  position  of  the  city  in  the  state  to  the 
organization  of  municipal  government,we  are  confronted  by  a  be- 


^  For  this  statement  I  am  indebted  to  Professor  A.  R.  Hatton 
2  See  Fairlie,  Essays  in  Municipal  Administration,  chap.  vii. 


J 


The  Organization  of  Municipal  Government     585 

wildering  variety  of  institutions  that  seem  to  defy  all  attempts  at 
classification  or  orderly  treatment;  but  certain  general  features 
may  be  drawn  out  by  the  comparative  process. 

Every  city  has  a  legislative  body  of  some  form  and  endowed 
mth  some  powers  of  local  government.  In  ^he  beginning  of  our 
history,  the  city  council,  following  the  old  English  plan",  was  a 
unicameral  body  with  two  classes  of  members,  common  council- 
lors ajid  aldermen;^  but  after  the  Revolution  many  states  began 
to  model  their  city  governments  on  the  plan  of  the  common- 
wealth governments  by  providing  a  council  of  two  chambers, 
and  indeed  nearly  all  of  our  important  cities  have  had  at  one  time 
or  another  double-chambered  councils.  They  did  not  prove  to  be 
very  efficient  or  successful  legislative  bodies,  however,  and  the 
plan  has  been  slowly  abandoned  in  favor  of  the  single-chambered 
council,  so  that  to-day  a  large  majority  of  our  great  cities,  includ- 
ing New  York,  Chicago,  Cleveland,  SaiL_Francisco,  Cincinnati, 
Minneapolis,  Boston,  New  Orleans,  and  Indianapolis  have  coun- 
cils composed  of  only  one  house.  Several  important  cities,  how- 
ever, including  Philadelphia,  St.  Louis,  Buffalo,  Baltimore,  and 
Louisville  have  retained  the  double-chambered  council.^ 

The  terms  of  city  councillors  range  from  one  year  to  four  years, 
but  are  more  commonly  fixed  at  two  years,  as  in  the  city  of  New 
York.  As  a  rule,  members  of  the  city  council  are  elected  by  the 
district  ticket;  that  is,  the  city  is  divided  into  districts  or  wards, 
and  one  representative  is  returned  from  each.^  The  number  of 
councillors  varies  greatly.  New  York  has  79,  including  the  presi- 
dent of  the  board  and  the  five  borough  presidents.  San  Francisco 
has  18  (elected  at  large);  Philadelphia,  190  in  both  houses; 
Chicago,  70;  and  Boston,  9  (elected  at  large). 

Many  objections  have  been  brought  against  the  district  system, 
on  the  ground  that  the  districts  are  arbitrary  divisions,  that 
there  is  not  the  same  need  for  local  representation  in  cities  which 
occurs  in  the  state  at  large,  and,  furthermore,  that  the  district 
system  does  not  make  any  provision  for  securing  the  representa- 
tion of  minorities.  One  of  the  most  notable  examples  of  the  way 
in  which  the  district  system  may  exclude  a  powerful  minority 
from  all  share  in  the  city  government  is  the  New  York  election  of 

^  Above,  p.  14. 

2  New  York,  St.  Louis,  and  Baltimore  are  now  engaged  in  charter  revision. 

^  Sometimes  more  than  one. 


586  American  Government  and  Politics 

1892,  in  which  the  majority,  with  a  vote  of  166,000,  elected  every 
member  of  the  council,  while  the  minority,  with  100,000  votes, 
was  entirely  unrepresented.^ 

Somewhat  analogous  conditions  have  existed  in  other  cities  at 
times,  and  have  led  to  a  demand  that  provisions  be  made  for  mi- 
nority representation.  In  the  New  York  constitutional  convention 
of  1894,  for  example,  such  a  reform  was  proposed,  and  in  support 
of  this  principle  Mr.  Root  said:  "I  do  not  know  whether  this  is 
desirable.  There  is  one  thing  about  it  that  I  can  say.  It  is,  that 
in  a  great  city  it  is  not  practicable  to  secure  the  same  kind  and 
variety  of  representation  by  means  of  cutting  the  city  up  into 
districts  which  you  get  wherf  you  take  the  different  counties  of  the 
state,  or  when  you  take  the  different  towns  of  a  county,  for  the 
reason  that  locaUty  counts  for  nothing  in  the  city,  except  in  iso- 
lated cases.  Here  and  there  will  be  a  neighborhood  which  is 
homogeneous,  the  people  dwelling  about  a  square,  the  people 
in  a  little  section  of  a  street;  but  as  a  rule,  my  next-door  neighbor 
is  not  the  man  who  lives  next  to  me ;  he  is  the  man,  perhaps,  who 
lives  three  or  four  miles  away,  and  whom  I  meet  in  business,  at 
.church,  at  the  club,  in  various  enterprises.  Locality  counts  for 
nothing.  The  Hues  of  demarcation  between  localities  do  not 
differentiate  representation,  and  every  man  elected  to  a  municipal 
legislature  represents  the  whole  city  as  much  as  he  represents  the 
particular  division  from  which  he  is  elected.  So,  Mr.  Chairman, 
the  only  logical  way  in  which  to  elect  representatives  would  be  on 
a  general  ticket;  but  if  you  elect  them  on  a  general  ticket,  either 
one  party  or  the  other  would  have  the  whole,  and  the  only  way  to 
secure  any  variety  of  representation  in  the  discussion  of  con- 
tending interests,  in  the  rectification  of  the  ideas  of  a  majority 
at  conflict  with  the  minority,  such  as  we  get  in  our  legislature  by 
electing  from  different  counties,  is  by  means  of  some  plan  of  pro- 
portional representation  or  minority  representation."  ^ 

The  proposition  to  provide  for  this,  however,  was  strongly  com- 
batted  on  the  ground  "  that  the  true  theory  of  democratic  govern- 
ment is  not  in  the  representation  of  every  crank  and  every   'ism * 

^The  system  of  electing  at  large  will  also  result  in  excluding  minority 
representation  unless  some  plan  of  cumulative  voting  is  devised .  (See 
above,  p.  523.) 

^Revised  Record  of  the  New  York  Constitutional  Convention,  Vol.  Ill, 
pp.  560-651. 


The  Organization  of  Municipal  Government      587 

in  legislative  bodies,  but  in  carefully  selecting  the  men  and  meas- 
ures which  shall  conserve  the  greatest  good  for  the  greatest  num- 
ber." ^  It  was  pointed  out  also  that  under  a  system  of  minority 
representation  a  party  possessing  a  large  pluraHty  could  be  out- 
numbered by  a  combination  of  minority  factions,  and  thus  re- 
sponsible rule  would  become  impossible.  The  argument  against 
the  reform  prevailed  in  the  constitutional  convention. 

Notwithstanding  all  the  various  reforms  which  have  been 
devised  for  cities  in  the  United  States  the  municipal  council  has, 
generally  speaking,  declined  in  its  powers  and  in  pubUc  esteem.^ 
Just  as  the  early  authority  of  the  state  legislatures  has  been  cur- 
tailed by  one  restriction  lifter  another,  so  the  original  power  of 
the  municipal  council  has  been  shorn  away  by  one  process  or  an- 
other. The  state  legislatures  are  increasing  the  range  of  their 
general  legislation  with  regard  to  sanitation,  tenement  houses, 
public  health,  education,  and  police;  and  the  extension  of  this 
general  legislation  has  naturally  curtailed  the  powers  of  city 
councils.  Their  powers  have  been  further  reduced  by  the  creation 
of  separate  boards  and  departments  —  such  as  the  board  of  esti- 
mate and  apportionment  in  New  York,  which  really  has  entire 
control  over  the  finances  of  the  city.  The  former  right  of  appoint- 
ing municipal  officers  has  been  taken  away  from  the  council  in  a 
large  number  of  cities  and  vested  in  the  mayor.  Furthermore, 
the  general  ordinance  power  of  the  council  is  being  curtailed, 
either  by  positive  prohibitions  in  the  charter  or  by  the  inclusion 
of  much  legislative  matter  in  that  instrument.  Under  these 
circumstances  it  is  small  wonder  that  the  city  council  has  been 
falling  into  neglect  and  inglorious  decay.  The  condition  became 
so  notorious  in  Boston  that  a  committee  making  an  official  investi- 
gation reported  that  membership  in  the  legislative  body  of  the 
municipality  was  a  discredit  rather  than  an  honor,  and  that  it  was 
difficult  to  induce  representative  men  to  become  candidates  for 
either  branch.^ 

In  a  large  number  of  cities,  the  inefficiency  and  dishonesty  of 
the  city,  council  has  led  to  its  complete  abolition  and  the  substitu- 
tion of  a  small  board  of  directors  elected  at  large  —  a  commission 
with  full  legislative  and  administrative  powers.^ 

^Ihid.,  Vol.  II,  p.  172. 

^Chicago  is  a  notable  exception.  See  Darning,  Government  of  American 
Cities,  pp.  91  ff.  ^See  Readings,  p.  521.  'See  below,  p.  598. 


588  American  Government  and  Politics 

However,  all  those  who  recognize  the  evils  so  prevalent  in  the 
city  council  are  by  no  means  convinced  that  such  a  branch  of 
municipal  government  should  be  abolished.  Many  eminent  pub- 
licists suggest,  in  the  place  of  this  drastic  cure,  a  complete  rehabili- 
tation of  that  body.  They  argue  that  a  deliberative  representa- 
tive assembly  is  indispensable  in  city  government  to  bring  the 
sense  of  the  people  and  their  varying  interests  to  bear  in  legisla- 
tion; that  the  insignificant  power  enjoyed  by  the  city  council  is 
largely  responsible  for  the  fact  that  few  energetic  and  capable 
citizens  are  willing  to  be  candidates  for  membership;  ^nd  also  that 
it  is  only  through  a  representative  common  council  that  party 
poHtics  can  be  kept  out  of  the  administrative  offices.  "It  is 
plain,"  says  Mr.  Dorman  B.  Eaton,  "that  a  true  council  is  in  its 
nature  a  non-partisan  body  because  one  in  which  ...  all  party 
interests  and  sentiments  of  importance  will  be  represented.  -To 
increase  the  authority  of  the  mayor  is,  therefore,  to  increase  the 
power  of  party  in  the  city  government;  while  to  increase  the 
authority  of  the  council  is  to  augment  the  influence  of  the  non- 
partisan and  independent  elements  among  the  people."  ^ 

The  Powers  of  the  City  Council 

First  among  the  general  powers  of  the  city  council  may  be 
placed  its  "poKce  power."  Unlike  the  state  legislatures,  the 
council  is  usually  restricted  rather  narrowly  in  this  matter  by  the 
terms  of  the  charter,  but  a  proviso  is  frequently  added  to  the  effect 
that  it  may  exercise  the  "powers  necessary  to  preserve  the  peace  • 
and  good  order  of  the  community  and  promote  the  pubUc  wel- 
fare." The  board  of  aldermen  or  city  council  ordinarily  has  the 
poAver  to  make,  amend,  and  repeal  ordinances  relating  to  healthy 
parks,  fires,  and  buildings,  except  in  "so  far  as  such  power  is  con- 
ferred on  the  heads  of  departments  or  on  other  boards,  and  not 
controlled  by  state  or  federal  law.  The  aldermanic  council 
may  make  ordinances  relative  to  beggars,  vagrants,  iritoxication, 
fighting  and  disorder  in  the  streets,  pubUc  amusements,  markets, 
gambhng,  bathing  places,  suppression  of  vice  and  immoraHty, 
the  preservation  of  peace  and  good  order,  the  use  of  firearms  and 
firecrackers  in  the  streets,  parades,  steam  vessels,  advertise- 
ments, circuses,  obnoxious  business,  and  other  similar  matters.    It 

^  The  Government  of  Municipalities,  p.  252. 


The  Organization  of  Municipal  Government     589 

must  be  noted,  however,  that  in  New  York  City,  in  accordance 
with  the  practices  adopted  in  many  American  cities,  the  law- 
making power  is  really  distributed  among  the  council,  depart- 
ments, boards,  and  single  'officers.' 

It  is  in  matters  of  finance  that  the  city  council  has  suffered  the 
mos^  serious  decline  from  its  former  position,  for  nowhere  in  the 
United  States  does  it  enjoy  the  privilege  of  imposing  general 
taxes  at  will.  The  power  of  the  city  to  incur  debts  is  also  restricted 
either  to  a  definite  sum  or  to  a  certain  percentage  of  the  assessed 
valuation  of  the  property.  The  constitution  of  New  York,  for 
example,  provides  that  no  city  or  county  may  become  indebted 
for  any  purpose  or  in  any  manner  to  an  amount  exceeding  ten  per 
cent  of  the  assessed  value  of  its  real  estate  subject  to  taxation; 
but  in  1909  an  amendment  was  adopted  enabling  New  York 
City  to  subtract  from  its  total  debt  debts  incurred  for  certain 
self-sustaining  public  improvements. 
/:/  Even  such  power  of  laying-taxes  and  incurring  debts  as  the  city 
possesses  is,  in  an  increasing  number  of  instances,  being  taken 
away  from  the  city  council.^  In  New  York,  for  example,  the  bud- 
get of  the  city,  which  determines  the  amount  of  taxes  which  shall 
be  raised,  as  well  as  the  different  objects  to  which  the  revenue 
shall  be  devoted,  is  prepared  not  by  the  board  of  aldermen  but 
by  the  board  of  estimate  and  apportionment,  composed  of  the 
mayor,  comptroller,  president  of  the  board  of  aldermen  and  the 
presidents  of  the  five  boroughs  into  which  the  city  is  divided.^ 
The  estimates  contained  in  the  budget  as  drafted  and  approved 
by  the  board  of  estimate  and  apportionment  may  be  reduced  but 
they  cannot  be  increased  by  the  board  of  aldermen,  to  whose  ap- 
proval they  must  be  submitted. 

In  the  commonwealth  of  New  York  the  city  also  has  no  power 
to  determine  the  character  of  the  taxes  laid ;  and  this  is  the  gen- 
eral rule  throughout  the  United  States.  In  most  instances  the 
city  is  permitted  to  add  a  certain  percentage  to  the  amount  levied 

^  On  the  way  in  which  the  original  sanitary  code  of  New  York  was  drafted 
and  adopted  by  the  board  of  health,  see  Eaton,  The  Government  of  Munici- 
palities, p.  263.  2  Below  p.  604, 

3  The  mayor,  comptroller,  and  president  of  the  board  of  aldermen  have 
three  votes  each,  the  borough  presidents  of  Manhattan  and  Brooklyn  two 
each,  and  the  borough  presidents  of  the  Bronx,  Queens,  and  Richmond  one 
vote  each. 


590  American  Government  and  Politics 

on  property  for  state  purposes;  but  in  New  York,  owing  to  the 
separation  of  state  and  local  revenues/  each  city  must  derive  its 
revenues  principally  from  taxes  on  real  estate  and  personal 
property. 

In  former  times  the  city  council  enjoyed  a  large  power  in  grant- 
ing franchises  for  the  construction  of  municipal  utiUties,  such  as 
waterworks  and  lighting  systems,  and  in  regulating  public  service 
corporations.  It  has  been  found  by  practical  experience,  how- 
ever, that  many  city  councils  have  been  guilty  of  corrupt 
practices  in  the  exercise  of  this  power  and  it  has,  therefore,  been 
withdrawn  in  many  instances.  Where  it  is  not  exercised  by  the 
state  legislature  it  is  frequently  vested  in  boards  or  commissions, 
such  as  the  board  of  estimate  and  apportionment  in  New  York. 
As  the  result,  the  power  of  the  [city  council  is  often  'reduced  to 
issuing  petty  licenses  to  tradesmen  and  to  regulating  only  minor 
matters  relative  to  public  utilities.  In  a  majority  of  cities, 
however,  it  still  retains  a  considerable  measure  of  power  over 
franchises ;  but  in  many  of  them  it  is  subject  to  a  referendum 
to  the  voters.^ 

The  city  council  has  also  been  shorn  of  its  former  authority 
over  the  administration  of  the  city,  and  it  stands  to-day  in  a  sharp 
contrast  to  the  English  council  which  elects  the  mayor  and 
through  various  committees  superintends  the  several  departments 
of  municipal  administration.  In  the  United  States,  the  city 
council  seldom  has  any  large  appointing  power  and  its  influence 
over  the  administration  is  of  slight  importance.  In  general,  the 
heads  of  departments  and  the  municipal  boards  are  either  elected 
by  popular  vote  or  appointed  by  the  mayor,  sometimes  with 
the  approval  of  the  council.  The  council  furthermore  does  not 
enjoy  the  right  of  removing  officers  and  thus  controlling  the 
general  direction  of  the  executive  department. 

To  bring  the  administration  and  the  council  together,  however, 
the  charter  of  New  York  provides  that  the  heads  of  administra- 
tive departments  shall  have  seats  in  the  board  of  aldermen,  must 
attend  when  required,  must  answer  questions  on  due  notice,  and 
may  participate  in  the  discussion  without  enjoying  the  right  to 
vote.  The  board  of  aldermen  is  charged  with  seeing  to  the  faith- 
ful execution  of  laws  and  ordinances  of  the  city,  and  it  may 


^  Below,  p.  715.  2ggiow,  p.  597. 


d 


The  Organization  of  Municipal  Government     591 

appoint  committees  to  examine  the  books  and  records  of  any 
department  or  officer.  In  practice,  though,  it  cannot  be  said  that 
the  board  of  aldermen  of  New  York  enjoys  any  large  authority 
over  the  administration. 

I  Finally,  the  ordinances  passed  by  the  city  council  are  subject 
to  the  mayor's  veto.  In  New  Ybrt  City,  an  ordinance  vetoed  by 
the  mayor  can  go  into  effect  only  when  repassed  by  two- thirds  of 
the  council,  or  by  three-fourths  if  it  involves  expenditures,  debt 
creation,  or  assessment,  and  the  mayor's  veto  on  grants  of  fran- 
chises, such  as  the  council  may  make,  is  final. 

The  Mayor 

The  city  has  a  mayor  or  chief  magistrate  who  is,  except  in  a 
very  few  instances,  elected  by  popular  vote.  His  term  of  service 
varies  from  one  to  five  years  —  annual  election  being  most  com- 
mon in  New  England.  The  term  in  Jersey  City  is  five  years,  in 
New  York  City,  Chicago,  and  Boston,  four  years,  and  in  most 
other  important  cities, -such  as  Baltimore,  Cleveland,  Denver,  and 
San  Francisco,  it  is  two  years.  The  salary  of  the  mayor  varies 
from  a  few  hundred  dollars  in  the  smaller  cities  to  $15,000  a  year 
in  New  York  —  an  amount  one-third  larger  than  the  salary  of 
the  governor  and  the  largest  paid  in  any  city  of  the  United  States. 

The  powers  of  the  mayor  extend  to  legislative,  administrative, 
and  financial  matters.  Like  the  governor  of  the  state,  it  is  his 
duty  to  communicate  at  least  once  a  year  to  the  board  of  alder- 
men a  general  statement  on  the  finances,  improvements,  and  ad- 
ministration of  the  city.  He  may  recommend  to  the  city  council, 
either  in  his  annual  message  or  from  time  to  time,  such  measures  as 
he  may  deem  expedient.  He  furthermore  enjoys  the  veto  power 
in  most  of  our  cities;  and  mayors,  following  the  example  set  by 
the  governors,^  have  frequently  used  the  veto,  not  only  to  defeat 
unlawful  ordinances,  but  also  to  prevent  the  passage  of  measures 
which  they  deemed  adverse  to  pubUc  interest.  The  mayor,  in 
many  cities,  enjoys  the  power  to  veto  separate  items  in  appro- 
priation bills. ^  Following  the  example  of  the  state  constitu- 
tions, our  city  charters  often  provide  that  a  vetoed  ordinance 

*  See  above,  p.  498. 

^For  example,  in  Baltimore,  Boston,  New  Orleans,  Philadelphia,  St. 
Louis,  New  York,  and  San  Francisco,  and  in  all  Ohio  and  Illinois  cities. 


592  American  Government  and  Politics 

can  become  law  only  when  repassed  by  the  council  by  an  extraor- 
dinary majority,  sometimes  two-thirds  and  in  many  instances 
even  more;  but  in  a  few  smaller  cities  the  mayor's  veto  may  be 
overridden  by  the  repassage  with  the  ordinary  majority. 

The  financial  powers  of  the  mayor  vary  from  city  to  city,  but  it 
may  be  said  with  safety  that  they  are  being  steadily  increased  in 
the  greater  municipaUties.  The  mayor  not  only  enjoys,  as  we 
have  seen,  the  power  of  vetoing  financial  measures,  but  he  also 
has,  in  a  number  of  instances,  a  very  large  control  over  the 
making  of  the  city  budget.  It  seems  that  in  Boston  the  budget 
has  long  originated  with  the  mayor  as  a  matter  of  practice;  and 
on  the  recommendation  of  the  recent  commission  appointed  to 
investigate  the  government  of  that  city  the  preparation  of  the 
budget  is  now  vested  in  the  mayor  in  law,  as  well  as  in  practice.^ 
In  New  York  City,  the  mayor  enjoys  a  very  peculiar  position 
with  regard  to  finances.  He  is  a  member  of  the  board  of  estimate 
and  apportionment  ^  and  as  such  possesses  three  votes  out  of  a 
total  number  of  sixteen.  He  also  has  the  power  to  veto  bills 
involving  finances  passed  by  the  board  of  aldermen,  and  it 
takes  a  three-fourths  vote  to  override  an  exercise  of  this  power. 
In  Baltimore,  the  mayor  is  likewise  a  member  of  the  board  of 
estimate  and  he  is  a  member  of  the  commission  of  finance  in 
charge  of  the  sinking  funds.  It  is  also  strongly  recommended  in 
the  municipal  program  of  the  National  Municipal  League  that  a 
large  power  in  arranging  the  city  budget  should  be  given  to  the 
mayor.  This  development  is,  of  course,  in  line  vdih  the  evolution 
of  the  budget  system  in  England,  where  the  preparation  of  the 
budget  is  vested  in  a  responsible  finance  minister  who  is  in  close 
touch  wnth  the  officers  of  the  administration  — and  thus  with  the 
outgo,  of  the  moneys  appropriated  —  and  is,  at  the  same  time, 
answerable  to  .the  electorate  through  his  responsibiUty  to  the 
majority  in  the  House  of  Commons.  The  waste,  extravagance, 
and  misappropriation  of  funds  in  our  cities  have  been  largely  due 
to  the  fact  that  the  financial  administration  has  not  been  suffi- 
ciently concentrated  in  the  hands  of  officers  responsible  to  the 
electorate.  ^ 

In  the  appointment  of  municipal  officers  and  the  direction  of 
municipal  administration,  the  power  of  the  mayor  is  likewi 


See  Readings,  p.  524 ;  below,  604, 


The  Organization  of  Municipal  Government     593 

steadily  increasing.  In  the  beginning  of  our  history,  municipal 
officers  were  generally  appointed  by  the  city  council;  but  with 
the  democratic  revolution  of  the  first  half  of  the  nineteenth 
century/  most  of  the  important  offices,  boards,  and  commissions 
were  made  elective.  It  was  found,  however,  by  practical  experi- 
ence, that  popular  election  did  not  actually  secure  responsibility 
of  elected  officers  to  the  voters;  for,  owing  to  the  number  of 
offices  and  to  the  complexity  of  the  election  operations,  the  se- 
lection of  candidates  actually  fell  into  the  hands  of  expert  politi- 
cians, who  made  the  "slates"  and  thus  secured  possession  of  the 
municipal  government.  In  order  to  check  the  corruption  which 
resulted  from  this  system,  the  de\dce  of  ''bi-partisan"  boards  and 
commissions  was  adopted  with  the  hope  that  the  representatives 
of  one  party  would  hold  in  check  the  representatives  of  the  other 
party;  but,  in  practice,  it  turned  out  that  the  representatives  of  , 
the  two  parties,  in  a  large  number  of  instances,  made  terms  with 
each  other  and  divided  the  spoils  of  office. 

Finding  that  the  elective  system  did  not  really  secure  popular 
election  and  that  the  bi-partisan  device  did  not  check  the  spoils- 
men, municipal  reformers  determined  to  try  the  experiment  of 
concentrating  the  appointing  power  in  the  hands  of  the  mayor  — 
thus  making  him  responsible  for  the  conduct  of  the  whole  ad- 
ministration. This  development  has  reached  its  highest  stage 
in  the  city  of  New  York,  where  the  mayor  appoints  the  commis- 
sioners of  the  police  force,  the  department  of  street  cleaning,  the 
fire  department,  the  department  of  parks,  the  department  of 
health,  the  tenement  house  department,  and,  in  short,  the  heads 
of  all  important  branches  of  the  municipal  administration;  and 
enjoys  also  the  unrestricted  power  of  renioving  these  municipal 
officers,  except  members  of  the  board  of  education,  judges,  and  a 
few  others.  Where  the  mayor  has  this  large  appointing  and 
removing  power  he  can  really  carry  into  effect  that  provision  of 
the  city  charter  which  lays  upon  him  the  duty  of  seeing  "  that  the 
laws  and  ordinances  are  faithfully  executed." 

Municipal  Administration 

As  in  the  state  and  national  government,  so  in  our  city  govern- 
ments, the  growth  of  population  and  the  development  of  many 

'See  above,  p.  79. 

2Q 


594  American  Government  and  Politics 

special  social  problems  have  rendered  necessary  the  multiplica- 
tion of  municipal  functions;  and  to  secure  efficiency  and  respon- 
sibility almost  every  device  known  to  the  history  of  municipal 
administration  has  been  tried  in  the  United  States.  We  have 
intrusted  the  great  departments  of  administration  — such  as 
poUce,  fire,  streets,  pubUc  works  —  to  elective  boards,  to  appoint- 
ive boards,  and  to  bi-partisan  boards;  and  now,  after  many 
years  of  experimenting,  we  seem  to  be  going  in  the  direction  of 
single-headed  administrative  departments,  filled  by  the  mayor 
under  his  appointing  and  removing  power.  As  Professor  Good- 
now  says,  "the  desirabiUty  of  single-headed  departments  has 
come  to  be  regarded  as  unquestionable;  it  is  heretical  at  the 
present  time  to  express  the  conviction  that  the  board  form  is 
preferable." 

The  single-headed  system,  however,  is  not  without  its  defects. 
Owing  to  the  complexity  of  the  duties  required  in  the  administra- 
tion of  a  large  municipal  department,  we  cannot  expect  efficiency 
where  the  term  of  office  is  short  and  where  the  office  is  generally 
looked  upon  as  a  reward  for  political  service.  On  the  other  hand, 
permanent  tenure  means  the  development  of  an  official  class 
which  is  regarded  with  suspicion  by  the  American  pubUc  and 
which  in  practice,  by  virtue  of  its  mastery  of  the  mysteries  of  the 
government,  tends  to  check  democratic  control.  It  has  been 
suggested,  therefore,^  that  the  various  departments  of  municipal 
administration  might  be  placed  in  the  hands  of  unpaid  boards, 
the  members  of  which  would  determine  only  matters  of  general 
policy,  leaving  the  technical  details  of  administration  to  perma- 
nent officials  selected  for  the  most  part  under  civil  service  rules. 

It  is  impossible  here  to  go  far  into  the  details  of  the  adminis- 
tration of  American  municipalities,^  but  some  idea  of  the  difficult 
nature  of  the  subject  may  be  gathered  from  an  examination  of  the 
executive  branch  of  the  government  of  New  York  City.  At  the 
head  stands  the  mayor,  whose  powers  and  duties  are  partially 
described  above.  The  entire  area  of  greater  New  York  is  divided 
into  five  boroughs,  Manhattan,  Bronx,  Brooklyn,  Queens,  and 
Richmond.  In  each  borough,  a  president  is  elected  by  popular 
vote.     Many  matters  of  borough  administration  are  left  to  the 

*  Goodnow,  Municipal  Government,  p.  228. 

2  On  this  large  topic,  Fairlie,  Municipal  Administration,  and  Essays  in 
Municipal  Administration. 


The  Organization  of  Municipal  Government     595 

president  arrd  a  board  of  local  improvement  in  each  of  several 
districts  into  which  each  borough  is  divided.  This  board  of 
local  improvements  is  composed  of  the  aldermen  of  the  district, 
elected  to  serve  in  the  board  of  aldermen  of  the  city;  and  in  con- 
junction with  the  borough  president  it  exercises  large  powers  over 
the  paving  and  repair  of  streets  and  highways,  the  laying  of 
tracks,  the  construction  of  public  buildings,  and  municipal  works 
of  a  local  character.  Thus  some  important  branches  of  municipal 
administration  are  decentralized,  and,  it  is  claimed,  proper  atten- 
tion secured  to  all  parts  of  the  city  by  bringing  pubHc  improve- 
ments more  directly  under  the  control  of  the  elected  officers  of 
each  of  the  districts  into  which  the  borough  is  divided. 
•  The  financial  administration  of  the  city  is  divided  between  two 
groups  of  authorities,  the  board  of  estimate  and  apportionment  — 
composed,  as  we  have  seen,  of  the  mayor,  comptroller,  president  of 
the  board  of  aldermen,  and  the  borough  presidents  — and  the  de- 
partment of  finance,  which  includes  the  comptroller,  chamberlain, 
and  the  board  of  commissioners  of  the  sinking  fund.  It  is  the 
business  of  the  board  of  estimate  and  apportionment  to  exam- 
ine the  departmental  estimates  submitted  and  prepare  the  city 
budget  between  October  ist  and  November  ist  of  each  year.  It 
also  has  the  power  of  granting  franchises  (with  the  approval  of 
the  mayor),  authorizing  the  issue  of  bonds,  and  controlling 
streets,  highways,  parks,  docks,  and  other  public  properties. 

The  technical  details  of  all  financial  administration  are  vested 
in  the  department  of  finance.  The  comptroller,  elected  by  popu- 
lar vote  for  a  term  of  four  years,  looks  after  the  accounts  of  the 
city  and  appoints  a  receiver  of  taxes  and  the  collector  of  assess- 
ments and  arrears.  The  chamberlain,  appointed  by  the  mayor, 
has  charge  of  the  receipts  and  payments;  and  the  commissioners 
of  the  board  in  charge  of  the  sinking  fund  ^  administer  the  sinking 
fund  for  the  redemption  of  the  city  debt,  lease  municipal  prop- 
erty, control  public  lands,  and  cancel  city  bonds. 

The  other  branches  of  municipal  administration  are  distributed 
among  the  departments  of  law,  police,  water-supply,  gas  and 
electricity,  street  cleaning,  bridges,  parks,  public  charities,  cor- 
rections, fire,  docks  and  ferries,  taxes  and  assessments,  education, 

'  Composed  of  the  mayor,  comptroller,  chamberlain,  president  of  the 
board  of  aldermen,  and  chairman  of  the  finance  committee  of  the  board 
of  aldermen. 


596  American  Government  and  Politics 

health,  tenement-house  inspection,  and  the  state  public  service 
commission.  Each  of  these  departments,  except  parks,  educa- 
tion, taxes  and  assessments,  and  the  pubHc  service  commission,  is 
headed  by  one  officer  appointed  by  the  mayor.  The  department 
of  parks  is  in  the  control  of  three  commissioners  appointed  by  the 
mayor,  and  one  commissioner  is  assigned  to  each  of  the  great 
administrative  divisions  of  the  city.^  The  department  of  educa- 
tion is  under  the  control  of  a  board  of  forty-six  members  ap- 
pointed by  the  mayor.  The  public  service  commission,  charged 
with  the  supervision  of  common  carriers,  street  railways,  gas  and 
electric  companies,  is  not  a  municipal  but  a  state  board,  composed 
of  five  members  appointed  by  the  governor  with  the  approval  of 
the  senate. 

Under  each  of  these  great  departments  there  is  an  army  of 
employees  numbering  more  than  60,000,  graded  in  official  hie- 
rarchies. Under  the  head  of  each  department  there  is  one  or 
more  deputies  appointed  by  the  head.  The  minor  offices  are 
principally  filled  —  theoretically,  at  least — by  examinations  and 
promotions.  By  far  the  greater  number  of  New  York  municipal 
employees  (42,713  in  1906)  are  under  the  jurisdiction  of  the  civil 
service  commission,  and  of  these  over  one-half  are  in  the  com- 
petitive class  filled  by  examination,  while  the  remainder  belong 
either  to  the  exempt,  non-competitive,  or  labor  class.  The 
largest  examination  held  by  the  New  York  commission, 
during  that  year,  was  for  patrolmen  in  the  police  department, 
at  which  1834  men  were  examined.  Outside  of  the  jurisdiction 
of  the  civil  service  commission  were  about  11,000  employees  in 
the  teaching  force  under  the  board  of  education,  also  selected 
by  examinations  and  promotions. 

The  civil  service  commission  ^  of  New  York  City  is  established- 
under  a  general  law  of  the  state,  which  provides  that  the  mayor  of 
each  city  shall  appoint  commissioners  —  not  more  than  two- 
thirds  to  be  of  the  same  political  party  —  for  the  purpose  of  pre- 
scribing, amending,  and  enforcing  rules  for  the  classification  of 
the  officers,  places,  and  employments  in  the  service  of  the  city; ; 
and  for  making  appointments  and  promotions  and  holding  ex- 
aminations;   and  for  registering  and   selecting   laborers  in  the? 

*  Strictly  speaking,  the  department  of  health  is  in  charge  of  a  board,  but^ 
the  health  commissioner  is  in  practice  the  chief  officer. 
2  Three  members. 


The  Organization  of  Municipal  Government     597 

employment  of  the  city.  The  merit  system  has  been  established 
for  the  cities  and  some  towns  in  Massachusetts;  for  Milwaukee 
and  certain  municipal  departments  in  cities  over  10,000  in  Wis- 
consin; for  Chicago,  Evanston,  and  a  few  others  cities  in  lUinois; 
for  New  Haven,  Connecticut;  in  some  departments  of  all  cities 
of  Ohio  (1908);  in  the  charters  of  San  Francisco,  Los  Angeles, 
Seattle,  Denver,  and  some  other  western  cities;  in  cities  of  the  first 
class  in  New  Jersey;  and  in  the  charter  of  Philadelphia.^ 

Municipal  Democracy 

The  suffrage  for  voting  in  municipal  elections  is  usually  the 
same  as  for  the  state  at  large,  but  there  are  some  exceptions.  For 
example,  Rhode  Island  restricts  the  municipal  franchise  by  a 
special  property  qualification,  and  Kansas  widens  it  by  admitting 
women. 

^  Not  only  is  the  suffrage  generally  unrestricted  by  property 
quahfications;  special  efforts  are  now  being  made  to  increase  the 
active  participation  of  the  voters  in  municipal  poHtics  by  new 
devices. 

1 .  The  principle  of  the  initiative  and  referendum  is  being  rapidly 
adopted  for  municipal  as  well  as  state  affairs,  so  that  the  voters 
may  initiate  measures  and  force  the  reference  of  ordinances, 
franchises,  and  other  matters  of  importance  to  the  electorate  at 
large.  No  less  than  twenty  states  have  adopted  the  initiative  and 
referendum ^*f or  some  or  all  of  their  cities:  California,  Colorado, 
Delaware,  Idaho,  Iowa,  Kansas,  Maine,  Massachusetts,  Missis- 
sippi, Missouri,  Minnesota,  Montana,  Nebraska,  North  Dakota, 
Oklahoma,  Oregon,  South  Dakota,  Tennessee,  Texas,  Washing- 
ton.3 

2.  The  principle  of  "the  recall"*  is  also  being  adopted,  espe- 
cially in  the  cities  with  commission  government.  Under  this 
system  elective  municipal  officers  may  be  forced  to  stand  for  a  new 
election,  or  withdraw  altogether,  when,  on  demand  of  a  certain 

^See  Proceedings  of  the  Annual  Meeting  of  the  National  Civil  Service  Re- 
form League,  for  each  year,  for  a  full  statement.  See  also  the  twenty-fourth 
Report  of  the  National  Civil  Service  Commission,  pp. '163  ff. 

^  In  many  other  cities  a  referendum  on  special  matters  is  allowed,  but  no 
initiative. 

'National  Municipal  League  Report  for  1909,  p.  in. 

*  Readings,  p.  531;  below  p.  600. 


598  American  Government  and  Politics 

percentage  of  the  voters,  a  new  election  is  held.  The  principle  has 
been  applied  in  a  modified  form  in  Boston,  where  the  mayor  may 
be  recalled  after  two  years  of  his  term  have  expired. 

3.  Finally,  party  conventions  for  municipal  nominations  are 
being  aboUshed  in  favor  of  nomination  by  petition  or  direct  pri- 
mary.^ The  petition  system  is  now  in  force  in  Boston  under  the 
recent  charter,  and  candidates  for  mayor  and  councilmen  are 
nominated  by  petitions  signed  by  5000  voters.  The  direct  pri- 
mary is  quite  generally  used  in  connection  with  the  commission 
form  of  city  government. 

Commission  Government 

No  lengthy  argument  need  be  adduced  to  show  that  the  gov- 
ernment of  the  great  American  city  is  a  complex  process  requiring 
a  multitude  of  detailed  technical  and  expert  operations  subject,  in 
matters  of  general  policy,  to  the  control  of  the  electorate.  By  its 
very  complexity  it  offers  a  multitude  of  opportunities  for  waste, 
corruption,  and  maladjustments.  On  the  side  of  its  administra- 
tion the  city  is  a  gigantic  business  concern  requiring  for  its  proper 
conduct  something  more  than  mere  election  enthusiasm.  Speak- 
ing abstractly,  all  of  its  branches  should  be  carefully  integrated  so 
that  there  can  be  no  conflict  of  authority,  no  waste  in  the  purchase 
of  suppHes,  no  neglect  of  duties  by  the  employees,  no  misuse  of 
funds  appropriated,  and  no  protection  for  vicious  interests  seeking 
to  evade  the  law  or  to  wrest  privileges  from  the  city. 

Recognition  of  this  fact  has  led  several  American  cities  to  com- 
pletely aboHsh  the  old  form  of  government  by  mayor  and  council, 
and  to  substitute  for  it  government  by  a  commission  composed  of  a 
few  men  endowed  with  full  legislative  and  executive  power  in  the 
city.  Although  there  had  been  for  some  time  a  tendency  toward 
greater  centralization  in  municipal  management,  the  movement 
for  coriimission  government  may  be  dated  from  the  reconstruction 
of  the  government  of  Galveston,  in  Texas,  aftet  the  great  storm 
of  1900,  which  destroyed  a  large  portion  of  that  unhappy  city  and 
sacrificed  some  6000  hves.  For  a  time,  the  government  of  that  mu- 
nicipality was  paralyzed,  for  the  great  problems  connected  with  the 
reparation  of  the  ruin  were  too  much  for  the  old  political  machine 
which  had  control.    A  committee  of  citizens  was  chosen  to  formu- 

^  Readings,  p.  530,  and  below,  chap.  xxx. 


The  Organization  of  Municipal  Government     599 

late  a  new  charter,  and  they  drafted  an  instrument  which  vested 
the  entire  government  in  the  hands  of  five  commissioners,  three 
appointed  by  the  governor  and  two  elected  by  The  people  of  the 
city  without  regard  to  ward  Unes.  This  charter  was  adopted,  but 
its  appointive  feature  was  declared  unconstitutional. 

A  revision  soon  followed  and  the  government  of  Galveston  was 
vested  in  a  mayor  and  four  commissioners  elected  at  large  by  the 
voters  of  the  city  and  invested  with  all  the  rights,  powers,  and 
duties  of  the  mayor  and  board  of  aldermen.  The  administration 
of  the  city  is  divided  into  four  departments:  police  and  fire, 
streets  and  pubUc  property,  waterworks  and  sewage,  and  fi- 
nance and  revenue ;  and  the  mayor  and  the  four  commissioners  are 
required  by  the  charter  to  designate  from  their  own  number  a 
commissioner  for  each  of  the  four  great  departments.  The  mayor 
president  is  merely  one  of  the  commissioners,  although  no  city 
department  is  assigned  to  him,  and  exercises  a  "general  coordi- 
nating influence  over  all."^  The  board  meets  at  stated  times 
for  the  transaction  of  public  business  very  much  as  the  board  of 
directors  of  a  great  corporation  would  meet  to  discharge  their 
functions. 

This  commission  form  of  government  with  modifications  has 
now  been  set  up  in  about  fifty  cities  scattered  from  Massachusetts 
to  California;  ^  and  a  number  of  states,  including  Iowa,  Kansas, 
North  Dakota,  Mississippi,  Minnesota,  Wisconsin,  and  Oklahoma, 
have  passed  laws  authorizing  their  municipalities,  under  certain 
conditions,  to  adopt  the  new  plan.  According  to  the  recent 
report  of  the  National  Municipal  League  (1909),  it  was  under 

^  See  the  excellent  article  by  Professor  W.  B.  Munro,  "Galveston,  Plan  of 
City  Government,"  Providence  Conference  for  Good  City  Government  (1907), 
p.  144.  The  annual  reports  of  the  National  Municipal  League  should  be 
consulted  for  the  progress  of  commission  government. 

^  The  following  cities  now  (1909)  have  commission  government  in  some 
form.  Massachusetts:  Haverhill,  Gloucester,  Chelsea.  Texas:  Beau- 
mont, Dallas,  Denison,  El  Paso,  Fort  Worth,  Houston,  Galveston,  Austin, 
Waco,  Marshall,  Palestine,  Corpus  Christi.  Iowa:  Des  Moines,  Cedar 
Rapids,  Burlington,  Keokuk.  Tennessee:  Greenville,  Memphis.  Kansas: 
Hutchinson,  Independence,  Kansas  City,  Leavenworth,  Topeka,  Wichita. 
Idaho:  Boise  City,  Lewiston.  Oklahoma:  Ardmore,  Tulsa.  North 
Dakota:  Minot,  Mandan,  Bismarck.  California:  San  Diego,  Berkeley. 
South  Dakota:  Sioux  Falls.  Colorado:  Colorado  Springs.  This  list 
is  not  complete. 


6oo  American  Government  and  Politics 

"  active  "  discussion  in  no  less  than  thirty- three  cities,  representing 
twenty-five  states.^  The  system  varies  somewhat  from  city  to 
city,  but  the  fundamental  principle  is  the  same  everywhere — j 
the  concentration  of  executive  and  legislative  power  in  the  hands 
of  a  small  body,  usually  of  five  men,  elected  at  large  by  the  voters 
of  the  city.  Several  of  the  cities,  notably  Des  Moines,  lowa,^  have 
added  a  system  of  initiative  and  referendum  and  also  a  device 
whereby  a  certain  percentage  of  the  voters  may  "recall"  any  one 
of  the  commission  —  that  is,  force  a  new  election  for  the  ofiice. 
There  is  also  a  general  tendency  to  abolish  party  methods  of 
making  nominations  and  substitute  a  non-partisan  primary. 

Commission  government,  as  Professor  Goodnow  points  out,^  is 
a  return  to  the  original  type  of  city  government  in  the  United 
States  in  so  far  as  it  concentrates  all  powers,  administrative  and 
legislative,  in  one  authority.     It  differs,  however,  from  the  original 
council  system  in  that  its  members  do  not  represent  single  districts, 
but  are  elected  at  large  by  the  voters  of  the  entire  city  —  a  practice 
which,  of  course,  substantially  excludes  minority  representation, 
and  is  so  far  highly  undesirable.     From  the  standpoint  of  pure  j 
business  administration,  the  commission  form  of  government  has 
many  features  to  commend  it.     It  centraHzes  power  and  respon-  , 
sibility  in  a  small  group  of  men  constantly  before  the  public  and 
subjected  to  the  scrutiny  of  public  criticism;    it  coordinates  the  ' 
taxing  and  spending  powers,  thus  overcoming  the  maladjustment  i 
so  common  to  American  public  finance;  and  it  throws  down  that| 
multiphcity  of  barriers  behind  which  some  of  the  worst  interests  j 
in  American  municipal  poHtics  have  screened   their   antisocial! 
operations. 

On  the  other  hand,  it  destroys  the  deliberative  and  representar 
tive  element  in  municipal  government,  and  mayTeadily  tend  to 
reduce  its  administration  to  a  mere  routine  business,  based  largely 
upon  principles  of  economy,  to  the  exclusion  of  civic  idealsi 
Furthermore,  it  is  claimed  that  we  get  greater  responsibilit}? 
by  concentrating  administrative  power  in  the  hands  of  th0 
mayor  than  by  dividing  it  among  five  commissioners. 

Another  serious  criticism  of  the  commission  system  is  based  on 

*  Cincinnati  Conference  for  Good  City  Government  (1909),  p.  96. 
^For  the  initiative,  referendum,  and  recall,  as  applied  in  Des  Moines, 
see  Readings,  p.  529. 

^Municipal  Government,  p.  176. 


A 


The  Organization  of  Municipal  Government     60 1 

the  contention  that,  in  the  light  of  our  municipal  experience,  it 
concentmtes  toji.^.eat  .a  „pQwer.  m  of  a  few^  men  and 

makes  it  easier  for  those  who  wish  to  buy  a  city  govemmenrio 
carry  out  their  design.  Iowa,  however,  has  sought  to  meet  this' 
objection  by  establishing  the  system  of  .reoall  noted  above.^ 
Under  this  system  twenty -five  per  cent  of  the  voters,  who  dis- 
approve of  the  poUcy  of  any  commissioner  or  believe  that  he  is  not 
discharging  his  functions  honestly  and  efficiently,  may  petition  for 
his  removal  and  compel  a  new  election.  The  whole  question  is 
then  submitted  to  the  electorate  at  large,  and  if  the  commissioner  is 
upheld,  assuming  that  he  stands  for  reelection,  he  retains  his  office, 
but  if  defeated  is  supplanted  by  the  popular  choice.  This  system 
of  recall  has  been  extended  to  some  cities  which  do  not  have  the 
commission  form  of  government,  and  is  ably  defended  by  many 
publicists  on  the  ground  that  it  conduces  to  effective  popular 
control. 

Under  the  Iowa  scheme  all  important  franchises  must  be  sub- 
mitted to  popular  vote  before  going  into  effect;  municipal  ordi- 
nances may  be  initiated  by  the  voters,  and  ordinances  passed  by 
the  commission  must  be  referred  to  the  electorate  on  a  petition 
properly  signed  and  filed. 

The  danger  of  concentrating  power  in  the  hands  of  such  a 
small  body  is  further  offset  in  the  Iowa  law  by  the  abolition  of  the 
party  convention  as  a  means  of  nominating  candidates  for  the 
offices  of  mayor  and  councilmen  and  the  substitution  of  nomina- 
tion by  direct  primary.  No  party  ballot  is  used  at  this  primary; 
names  are  placed  upon  it  by  petition;  and  the  two  aspirants 
receiving  the  highest  vote  for  mayor  and  the  eight  aspirants 
receiving  the  highest  number  of  votes  for  councilmen  are  put  upon 
the  regular  ballot  as  candidates  for  the  offices  of  mayor  and  coun- 
cilmen. This  ballot  is  t<hen  submitted  to  the  voters  at  the 
regular  election.  While  this  system  does  not  prevent  members 
of  parties  from  concentrating  their  efforts  upon  their  own  candi- 
dates, it  does  prevent  the  politicians  from  forcing  their  ready-made 
"slates"  upon  the  voters;  furthermore,  at  the  regular  election  it 
focusses  the  attention  of  the  pubUc  upon  only  two  candidates  for 
each  of  the  five  offices. 

This  general  tendency  toward  the    concentration   of  power 

^See  Readings,  p.  531. 


6o2  American  Government  and  Politics 

was  manifested  in  the  revolution  that  took  place  in  the  govern- 
ment of  Boston  in  1909.  The  bicameral  city  council  was  abol- 
ished and  a  single-chambered  body,  composed  of  nine  men/ 
elected  on  a  general  ticket  by  popular  vote,  was  substituted. 
Partisan  nominations  for  city  offices  were  abolished  and  nomina-1 
tion  by  petition  signed  by  5000  voters  adopted.  The  mayor  was  ' 
authorized  to  originate  all  the  appropriations  except  those  for 
school  purposes,  and  the  city  council  merely  given  the  power  to 
reduce  any  item.  The  mayor  was  also  given  the  absolute  veto 
over  any  ordinance  or  resolution  carrying  an  appropriation  with 
it.  To  secure  adequate  scrutiny  and  publicity  for  taxation,  ap- 
propriations, and  expenditures,  a  permanent  finance  commission, 
appointed  by  the  governor,  was  created  and  invested  with  the 
power  of  examining  all  matters  relating  to  appropriations,  loans, 
and  expenditures.  To  improve  the  personnel  of  the  city  admin- 
istration, a  provision  was  adopted  requiring  the  heads  of  depart- 
ments to  submit  the  names  of  their  appointees  to  the  state  civil 
service  commission  for  investigation  and  approval;  and,  to  re- 
move the  control  of  the  poHticians  in  the  council  over  appoint- 
ments, the  mayor  was  empowered  to  fill  all  important  adminis- 
trative offices.^ 

^  Three  to  be  elected  annually. 

2  Except  the  school  board,  which  is  elective. 


CHAPTER  XXVIII 

MUNICIPAL  FUNCTIONS 

Municipal  Finances 

As  in  the  case  of  the  state  government,  the  most  important 
functions  of  the  city  at  present  are  those  connected  with  raising 
and  disbursing  funds;  and,  inasmuch  as  corruption  and  ineffi- 
ciency are  constantly  arising  in  our  municipal  finances,  special 
attention  has  been  given  within  recent  years  to  the  problem  of 
budget-making  and  effective  control  over  city  expenditures.  In 
our  great  cities  the  financial  problem  is  vast  and  compUcated. 
The  budget  of  the  city  of  New  York  for  the  year  1909  totalled 
$156,545,148.14  —  five  times  the  budget  of  the  state  for  the  same 
year,  and  four  times  the  combined  budgets  of  Alabama,  Arkansas, 
California,  Colorado,  Connecticut,  Delaware,  Florida,  Idaho, 
Illinois,  and  Georgia.  The  annual  increase  of  the  budget 
of  New  York  within  recent  years  has  been  greater  than  the 
total  budget  of  St.  Louis  or  Baltimore  and  Cleveland  combined, 
—  five  times  greater  than  the  total  budget  of  Louisville,  Ken- 
tucky, and  ten  times  greater  than  the  total  budget  of  Kansas 
City. 

Even  if  all  of  the  officials  of  the  dty  administration  are  men  of 
unquestioned  integrity,  great  waste  and  extravagance  in  expendi- 
ture will  inevitably  arise  unless  there  is  provision  for  the  most 
scientific  bookkeeping  and  adequate  scrutiny  and  control  by 
capable  and  responsible  authorities.  An  investigation  in  New 
York  City,  in  1908,  resulted  in  some  remarkable  revelations. 
It  was  discovered  that  cheap  coat  hooks  which  any  citizen  could 
buy  for  five  cents  apiece  had  been  purchased  by  the  city  at  sixty 
cents  apiece,  with  an  additional  charge  of  five  cents  for  each 
small  screw  used  to  put  up  the  hooks.  One  hundred  and  sixty- 
five  hooks,  172  bolts,  and  18  screws  cost  the  city  of  New  York 

603 


6o4  American  Government  and  Politics 

$117,  and  it  took  two  workmen  thirty-one  days  at  $8  a  day  to 
put  up  the  165  hooks  —  making  a  total  cost  in  materials  and 
labor  of  $365.10,  or  $2.21  a  hook.  It  was  found  also  that  the 
pohce  department  paid  21  cents  a  pound  for  nails  which  any 
private  citizen  could  get  for  4^  cents.  A  charming  bit  of  "high 
finance"  in*  street  contracting  was  also  unearthed:  a  contractor 
who  was  paid  to  make  excavations  for  paving  a  street  was  also 
paid  $900  for  fiUing  in  a  near-by  road  with  the  dirt  removed  from 
the  first  one.^  Similar  extravagances  and  wastes  could  undoubt- 
edly be  discovered  in  any  other  large  city  in  the  Union. 

To  remedy  these  undoubted  evils  in  municipal  finance  many 
reforms  have  been  devised  and  projected.  There  is,  in  the  first 
place,  a  general  tendency,  as  we  have  seen,  to  take  the  budget- 
making  out  of  the  hands  of  the  city  council  and  vest  it  in  some 
smaller  and  more  responsible  body.  In  New  York,  the  budget 
is  made  by  the  board  of  estimate  and  apportionment  composed 
of  the  mayor,  comptroller,  president  of  the  board  of  aldermen,  and 
the  presidents  of  the  five  boroughs.  The  budget  of  Boston,  under 
the  recent  law,  is  originated  by  the  mayor,  and  city  finances  are 
to  be  scrutinized  by  a  commission  appointed  by  the  governor. 
In  several  other  cities  budget-making  is  also  vested  in  the 
hands  of  some  special  authority.  In  Ohio  cities,  the  mayor 
makes  up  the  budget  from  estimates  furnished  by  the 
departments;  the  couAcil  may  omit  or  decrease  items,  but 
cannot  increase  the  total  of  the  budget.  In  Denver,  *the 
mayor  prepares  the  estimates  and  a  two-thirds  vote  is  required 
in  the  council  to  change  them.  In  Detroit  the  budget  is 
prepared  by  the  comptroller;  and  in  San  Francisco  by  the 
auditor  after  public  hearings. 

To  secure  the  desired  efficiency  in  controlling  city  finances, 
even  where  small  responsible  boards  are  in  charge,  many  specific 
reforms  have  been  suggested  by  experts,  of  which  only  a  few  can 
be  enumerated  here.^  There  are  two  aspects  of  budget-making. 
On  the  one  side  the  will  of  the  voters  with  regard  to  the  several 
amounts  to  be  appropriated  for  the  great  purposes  of  city  gov- 
ernment should  be  realized,  and  some  provision  must  therefore 
be  made  for  enabhng  the  citizens  who  wish  to  bring  influence  to 

^  See  the  Outlook,  for  August  28,  1909. 

'  See  the  publications  of  the  Bureau  of  Municipal  Research,  261  Broadway, 
New  York  City;  and  the  Political  Science  Quarterly  for  December,  1908. 


Municipal  Functions  605 

bear  on  behalf  of  certain  institutions,  such  as  the  tenenient, 
health,  and  school  departments,  to  have  an  adequate  oppor- 
tunity to  be  heard  by  the  pubKc  authorities  in  charge  of  making 
up  the  budget.  In  New  York  City,  the  law  provides  for  hearings 
by  the  board  of  estimate  and  apportionment  and  it  is  a  common 
practice  for  the  various  departments,  taxpayers'  associations,  and 
other  interests  in  the  city  to  present  their  claims.  Advocates  of 
improvement  in  our  educational  methods,  those  who  wish  to  see 
more  searching  tenement-house  and  sanitary  inspection,  those 
who  want  new  systems  of  transportation,  and  all  other  groups 
desiring  the  city  to  undertake  or  extend  or  curtail  any  particular 
functions,  may  present  their  respective  demands  before  this 
board.  Unfortunately,  however,  the  pubUc  does  not  reahze  the 
importance  of  budget-making,  and  we  are  sadly  in  need  of  general 
education  with  regard  to  the  proper  expenditure  of  municipal 
revenues. 

The  second  aspect  of  budget-making  is  largely  concerned  with 
technical  matters  —  the  effective  execution  of  the  pubHc  will  in 
the  disbursement  of  funds;  but  even  here  the  influence  of  the 
pubHc  should  be  brought  to  bear  in  order  to  secure  scrutiny  and 
pubhcity.  The  charter-makers  of  New  York  City  attempt  to 
provide  for  this  side  of  financial  administration  by  creating  com- 
missioners of  accounts,^  but  their  purpose  has  not  been  realized 
in  practice.  Boston  has  attempted  publicity  through  the  com- 
mission appointed  by  the  governor  with  full  power  to  investigate 
the  expenditure  of  money  in  the  city. 

On  this  technical  side  certain  positive  demands  are  being  made 
in  the  name  of  efficiency.-  A  uniform  system  of  bookkeeping 
should  be  estabhshed  in  all  departments,  and  when  the  budget- 
making  authority  desires  to  secure  specific  information  from 
them  it  ought  to  send  out  uniform  questions  and  secure  uniform 
answers,  "so  that  the  salary  changes  and  costs  of  supphes  and 
repairs,  etc.,  will  mean  the  same  thing  in  all  estimates,  for  each 
department,  and  for  each  main  division  of  work."  The  estimates 
for  pay-rolls  and  general  maintenance  for  each  department  should 
be  made  on  an  annual,  not  a  monthly,  basis.  When  increases  in 
pay-rolls  are  demanded,  it  should  be  specifically  stated  whether 

^  See  Readings,  p.  5^0. 

2  See  How  Should  Public  Budgets  Be  Made  ?  Bureau  of  Municipal  Research, 
New  York  City. 


6o6  American  Government  and  Politics 

the  increases  are  for  additional  employees  or  for  higher  salaries. 
The  tentative  estimates  of  each  department  containing  great 
specific  detail  should  be  prepared  in  advance  and  made  available 
to  the  public  a  considerable  period  before  the  actual  making  of 
the  budget. 

To  enable  the  public  to  play  its  part  in  the  framing  of  the  bud- 
get, it  is  necessary  for  civic  bodies  to  be  active  in  laying  before  the 
people  in  various  ways,  especially  through  the  press,  the  saHent 
features  of  general  interest  in  the  proposed  budget.  While  the 
estimates  are  still  in  tentative  form,  pubHc  hearings  should  be 
granted,  and  after  the  whole  budget  is  ready  for  its  final  adoption 
its  principal  features  should  be  made  pubHc  again,  and  further 
hearings  granted.  It  is  also  suggested  that,  in  connection  with 
the  publication  of  the  leading  items  of  the  tentative  budget, 
statements  should  be  made  with  regard  to  those  demands  of  the 
citizens  which  had  been  rejected. 

Public  control  should  extend  beyond  the  making  of  the  budget 
to  the  disbursement  of  funds,  because  it  is  a  common  practice  for 
pubhc  officers  to  use  funds  for  other  purposes  than  those  indicated 
in  the  actual  appropriation.  It  is  suggested,  therefore,  that  "a 
resolution  should  accompany  every  budget  to  the  effect  that 
moneys  therein  appropriated  may  not  be  used  for  other  purposes 
without  authority  from  the  appropriating  body  and  without 
due  notice  to  the  public."  To  prevent  the  head  of  any  de- 
partment from  spending  his  allowances  early  in  the  fiscal  year 
and  becoming  bankrupt  later,  the  amounts  voted  for  each  pay- 
roll should  be  so  divided  that  the  disbursements  for  any  one 
month  do  not  exceed  one-twelfth  of  the  total  annual  appro- 
priation.^ Finally,  "  to  make  possible  these  steps  and  to  make 
certain  their  execution,  it  is  necessary  to  have  from  the  first  day 
of  the  year  in  all  of  the  departments  modern  business  methods  of 
describing  work  done  when  done,  and  money  spent  when  spent, 
plus  methods  of  inspection  and  of  audit  to  see  that  the  rules  are 
compUed  with  and  the  truth  told."  ^ 


^  The  city  comptroller  of  New  York  is  now  instructed  to  supervise  the 
monthly  pay-rolls  and  to  see  that  the  sums  of  money  voted  are  expended  for 
the  purposes  for  which  they  were  designed. 

*  On  taxation,  see  below,  chap.  xxxi. 


Municipal  Functions  607 

Police  Administration 

A  primary  function  of  a  municipality,  of  course,  is  the  exercise 
of  the  police  power  in  its  narrowest  sense;  that  is,  the  enforcement 
of  the  law  against  thieves,  burglars,  murderers,  incendiaries, 
and  criminals  of  every  type,  high  and  low.  This  work  is  intrusted 
to  the  police  force;  and  in  America  the  poHce  is  regarded  as  a 
branch  of  local  government,  although  in  a  few  states  a  somewhat 
strict  control  is  placed  in  the  hands  of  the  central  administration. 
The  New  York  legislature,  for  example,  in  1857,  combined  New 
York  City,  Brooklyn,  and  some  contiguous  areas  into  a  single 
metropolitan  poHce  district  imder  the  supervision  of  a  state 
commission,  but  thirteen  years  later  the  scheme  was  abolished. 
There  is  to-day,  however,  a  special  division  of  pohce  charged  with 
enforcing  the  election  law  in  the  metropolis  and  placed  under  the 
control  of  a  state  commissioner  appointed  by  the  governor.  In 
Baltimore,  St.  Louis,  and  Boston  the  police  boards  are  branches 
of  the  state  administration.  In  Pennsylvania  and  some  other 
commonwealths  there  is  a  special  state  police  force. 

It  is  pointed  out  in  defence  of  the  state  system  of  control  that 
in  the  present  condition  of  American  politics  the  police  depart- 
ment too  often  falls  under  the  control  of  the  vicious  elements  of 
the  population  against  which  it  is  supposed  to  enforce  the  law. 
The  governor  of  Massachusetts  said  in  1868,  "It  is  apparent  that 
pubHc  decency  and  order  and  public  justice  require  the  mainten- 
ance of  an  executive  body  which  shall  not  be  controlled  by  the 
public  sentiment  of  any  locaHty,  and  which  shall  be  competent  in 
its  spirit,  its  discipHne,  and  its  members  to  a  reasonable  and  judi- 
cious but  just  and  impartial  enforcement  of  the  statutes  of  the 
commonwealth."  ^ 

^  Quoted  in  Goodnow,  Municipal  Government,  260.  Professor  A.  R.  Hat- 
ton,  in  a  paper  read  before  the  National  Municipal  League  in  1909,  made  the 
following  suggestions  for  a  plan  of  coordinating  state  and  local  police  control: 

1.  Police  commissioner  in  each  city  to  be  appointed  by  the  mayor;  term, 
during  good  behavior;  removable  by  mayor  after  a  public  statement  of  charges. 

2.  Mayors,  police  commissioners,  and  sheriffs  to  be  removed  by  the 
Governor  after  public  statement,  for  delinquency  or  corruption. 

3.  A  system  of  state  inspection  of  local  police. 

4.  A  small  but  efficient  state  detective  force  under  the  supervision  of 
the  governor  to  assist  him  in  keeping  informed  of  local  conditions. 

5.  Centralization  of  state  inspection  and  detective  work  in  a  state  bureau. 
Cincinnati  Conference  for  Good  City  Government,  1909,  pp.  157  ff. 


6o8  American  Government  and  Politics 

It  is  the  general  practice  in  the  United  States,  however,  to  vest 
the  control  of  the  police  force  in  some  local  authority,  but  the 
greatest  divergences  have  arisen  in  the  construction  of  that 
authority.  In  the  middle  period  of  our  municipal  development 
the  supervision  of  the  poHce  was  generally  intrusted  to  a  board, 
which  was,  in  some  cities,  made  elective.  The  board  system  was 
popular  for  a  time,  largely  because  it  secured  representation  for 
both  poUtical  parties,  which  were  supposed  to  watch  and  check 
each  other.  It  was  soon  found  by  experience  that  instead  of 
watching  each  other  they  frequently  combined  to  divide  the 
spoils.  The  board  system,  moreover,  did  not  fix  responsibility  in 
any  single  person,  and  when  charges  of  corruption  and  inefficiency 
were  preferred,  each  member  would  plead  not  guilty,  and  very 
probably  attempt  to  shift  the  burden  to  some  other  member. 
The  difficulty  of  placing  the  responsibility  at  length  led  in  most 
large  cities  to  the  abandonment  of  the  board  system  and  the  con- 
centration of  supervision  in  the  hands  of  a  single  officer  appointed 
by  the  mayor.  -* 

In  the  city  of  New  York,  for  example,  the  police  commissioner 
is  appointed  by  the  mayor  for  a  term  of  five  years  and  he  may  be 
removed  by  the  mayor  at  any  time.^  He  is  charged  with  the 
administration  of  the  police  department  and  the  supervision  of 
the  poHce  force;  and  in  order  to  place  full  authority  and  respon- 
sibility on  him,  he  is  given  power  to  appoint  four  deputy  com- 
missioners to  assist  him  in  his  administrative  duties  and  in  the 
execution  of  his  policy.^    This  is  undoubtedly  a  highly  centralized 

^  He  may  also  be  removed  by  the  governor  of  the  state. 

2  This  extract  from  an  article  by  General  Theodore  A.  Bingham,  ex- 
police  commissioner  of  New  York  City,  indicates  one  of  the  problems  con- 
nected with  the  question  of  the  tenure  of  office,  which  is  commonly  overlooked: 
"I  found  immediately  that  among  the  officers  of  the  force  there  were  very 
few  I  could  trust  to  carry  out  my  orders  in  good  faith.  The  reason  was  very 
simple.  I  was  head  of  the  department  for  an  indeterminate  period,  which 
might  end  at  any  time.  Back  of  me  was  the  mayor,  who  chose  me,  and  whose 
office  would  also  end  at  an  early  date.  Back  of  him  was  the  permanent 
political  machine,  which  elected  him.  As  the  policeman  is  in  office  for  life, 
he  very  logically  looked  past  both  the  mayor  and  me  and  made  his  alliances 
and  took  his  orders  from  the  only  permanent  influence  concerned  —  the 
pohtician.  I  could  not  at  that  time  even  choose  the  leading  officers  of  the 
department  whom  I  wanted  to  carry  out  my  orders.  I  was  in  command  of 
a  body  of  men  who,  by  the  logic  of  their  position,  were  forced  to  take  their 
final  orders  from  some  one  else.    That  condition  of  affairs  exists  to-day,  and 


Municipal  Functions  609 

system,  but  if  the  police  force  is  corrupt  and  the  enforcement  of 
the  law  is  lax,  the  citizens  know  how  to  find  a  remedy  —  they 
bring  pressure  to  bear  at  once  upon  the  mayor.  On  the  whole, 
it  has  worked  better  than  the  board  system. 

The  uniformed  police  force  organized  on  a  mihtary  basis  is  a 
somewhat  recent  development  in  the  cities  of  western  Europe. 
In  the  Middle  Ages  and  well  into  the  eighteenth  century,  the  cities 
of  England  relied  upon  unpaid  justices  and  constables;  toward 
the  end  of  the  eighteenth  century  the  practice  of  employing  paid 
night  watchmen  was  adopted;  and  at  length  in  1828  a  constabu- 
lary force  under  commissioners  appointed  by  the  crown  was  es- 
tabhshed  for  London,  in  the  face  of  bitter  opposition  to  what  was 
regarded  as  an  inroad  upon  the  liberties  of  the  British  citizens.^ 
As  late  as  1840,  the  city  of  New  York  had  no  regular  patrol  during 
daytime  and  rehed  largely  at  night  upon  watchmen  who  were 
otherwise  employed  during  the  day;  and  it  was  not  until  1844 
that  a  completely  organized  police  force  was  adopted  for  that 
city.  In  the  beginning,  however,  there  was  great  opposition  to 
wearing  uniforms;  but  at  length  the  requirement  was  made  uni- 
versal. Within  a  short  time  organized  and  uniformed  police 
forces  were  created  for  Philadelphia,  Boston,  Baltimore,  and  other 
large  cities,  and  distrust  of  the  military  feature  disappeared  en- 
tirely. 

For  the  purpose  of  police  administration,  each  city  of  any  size 
is  divided  into  precincts,  or  districts,  in  each  of  which  there  is  a 
police  station  and  a  squad  of  men.  The  poUce  force  itself  is  or- 
ganized on  the  military  principle  of  graded  authorities  rising  up- 
ward from  the  patrolman  to  the  chief.  In  New  York,  for  ex- 
ample, there  is  assigned  to  each  precinct  a  group  of  patrolmen; 
above  them  there  is  a  sergeant  or  roundsman  who  makes  periodi- 
cal tours  of  the  district  to  see  that  the  men  in  the  rank  are  doing 
their  duty;  over  this  local  force  is  placed  a  captain;  and  the 
whole  city  is  under  the  supervision  of  the  chief  and  his  four 
deputies.  For  the  purpose  of  facilitating  central  control,  the 
city  is  laid  out  into  large  inspection  districts  in  charge  of  special 
officers,  known  as  inspectors,  who  are  supposed  to  keep  close 
watch  on  the  conduct  of  the  subordinates.     And  there  is,  in 

will  exist  so  long  as  the  police  commissioner  of  New  York  has  no  permanence 
in  office."  — McClure's  Magazine  for  November,  1909. 
'  Reference:  Fairlie,  Municipal  Administration,  p.  131. 


J 


6io  American  Government  and  Politics 

addition,  a  corps  of  detectives  connected  with  a  central  bureau, 
likewise  under  the  general  supervision  of  the  commissioner. 
Most  large  cities,  including  New  York,  also  have  special  divisions 
of  police,  such  as  the  bicycle  squad,  the  moxmted  squad,  and  the 
river  and  harbor  squad/ 

The  poUce  administration  is  one  of  the  most  difficult  branches 
of  city  government  because  of  the  opportunities  for  corruption 
offered  to  every  member  of  the  force,  from  the  roundsmen  on 
their  beats  to  the  police  commissioner  in  his  central  office.^ 
There  are  everywhere  opportunities  for  discrimination  and  per- 
secution; saloon  keepers  are  wiUing  to  remunerate  poUcemen  for 
overlooking  violations  of  the  closing  law;  gamblers  and  keepers 
of  houses  of  ill-fame  are  wilhng  to  pay  handsomely  for  "immu- 

ynity  ";  in  short,  all  of  the  lawless  elements  of  the  city  which  derive 
profit  from  plying  their  respective  trades  are  willing  to  share  their 
ill-gotten  gains  with  the  police  for  protection. 

Not  only  monetary  considerations  are  brought  to  bear  to 
induce  neglect  of  duty.  Those  who  have  economic  interests  at 
stake  are  always  quick  to  combine  and  bring  pressure  to  bear 
through  political  channels  by  taking  part  in  primaries  and  elec- 
tions, and  by  contributing  heavily  to  campaign  funds  and  to  the 
private  exchequers  of  political  bosses.  In  every  large  city  in  the 
United  States,  the  criminal  elements,  deriving  profit  through  po- 
lice protection,  are  organized  more  or  less  effectively  for  political 
purposes,  and  whenever  there  is  a  general  exposure  they  are 
usually  to  be  found  influential  in  the  poUtical  party  which  con- 
trols the  city  government.^ 

These  ordinary  sources  of  poHce  corruption  are  augmented  by 
/the  attempts  of  the  rural  communities  to  force  upon  the  cities 
moral  standards  which  the  latter  do  not  accept.  Furthermore, 
there  is  in  the  United  States  a  marked  tendency  to  penalize  every 
action  which  the  religious  elements  regard  as  sinful.  A  minority 
of  moral  enthusiasts  can  readily  push  through  the  state  legisla- 
ture some  measure  which  has  no  support  at  all  from  the  great 
mass  of  the  people  and  which  even  the  enthusiasts  themselves  are 

^  To  prevent  the  spoils  system  from  entering  into  the  selection  of  the  rank 
and  file  of  the  police  force,  New  York,  Milwaukee,  and  many  other  laxge 
cities  have  provided  civil  service  examinations  for  patrolmen. 

*  See  Readings,  p.  505. 

'  Note,  for  instance,  the  recent  exposures  in  San  Francisco. 


Municipal  Functions  6ii 

unwilling  to  uphold  by  a  concentrsited  and  persistent  action. 
Accordingly,  we  have  upon  our  statute  books  innumerable  laws 
imposing  fines  and  other  penalties  for  actions  which  the  majority 
of  the  people  do  not  even  regard  as  harmful,  but  which  afford  the 
police  splendid  sources  of  revenue  for  neglecting.  Thus  we  have 
the  peculiar  situation  of  political  bosses  and  police  corruptionists 
supporting  measures  introduced  into  the  legislature  by  the 
Women's  Christian  Temperance  Union  and  the  clergy  because 
they  know  full  well  that  every  new  penalty  imposed  yields  quick 
revenue  to  those  who  can  guarantee  immunity  to  the  violators  of 
the  law.  "There  has  never  been  invented  so  successful  a  'get- 
rich-quick'  institution,"  says  Professor  Goodnow,  "  as  is  to  be 
found  in  the  control  of  the  police  force  of  a  large  American  city. 
Here  the  conditions  are  more  favorable  than  elsewhere  to  the  devel- 
opment of  police  corruption  because  the  standard  of  city  morality, 
which  has  the  greatest  influence  on  the  poUce  force  which  has  to 
enforce  the  law,  is  not  the  same  as  that  of  the  people  of  the  state 
as  a  whole  which  puts  the  law  on  the  statute  book.  What  the 
state  regards  as  immoral  the  city  regards  as  innocent.  What 
wonder  then  if  the  city  winks  at  the  selling  by  the  police  of  the 
right  to  disobey  the  law  which  the  city  regards  as  unjustifiable."  ^ 
This,  of  course,  is  not  an  argument  against  attempting  to  raise 
the  standard  of  civilization  by  the  enactment  of  criminal  laws 
because  they  cannot  be  perfectly  enforced,  but  it  is  an  argument 
against  the  enactment  of  laws  which  have  no  adequate  founda- 
tion in  the  moral  sense  of  the  communities  to  which  they  are 
applied. 

Closely  connected  with  the  police  force  are  the  courts  in  which 
are  tried  the  offenders,  great  and  small,  who  are  arrested  by  the 
patrolmen.  The  selection  of  judges  for  these  courts  is  a  serious 
matter,  for  these  judges  have  control  over  the  life  and  destiny  of 
hundreds  of  poor.  It  is  important  that  they  should  be  in  close 
and  sympathetic  touch  with  the  social  and  economic  conditions 
under  which  the  people  who  are  brought  before  them  are  com- 
pelled to  live.  A  kind  word,  a  gentle  rebuke,  or  a  helping  hand  at 
the  right  moment  may  stay  a  new  offender  on  his  downward, 
course,  or  may  save  from  despair  some  poor  person  whose  only 
offence  is  his  ignorance,  or  who  may  have  been  arrested  without 

^  Municipal  Government,  p.  266. 


J 


6i2  American  Government  and  Politics 

warrant  by  some  still  more  ignorant  policeman.  On  the  other 
hand,  brutality  and  indifference  in  a  police  magistrate  may  fill 
the  prison  with  people  who  have  no  business  there;  may  em- 
bitter a  large  portion  of  the  population  against  what  purports  to 
be  a  system  of  "justice,"  and  may  add  to  the  hopelessness  which 
overwhelms  thousands  in  their  fight  against  the  poverty,  unem- 
ployment, and  imcertainty  so  prevalent  throughout  all  the  great 
urban  centres. 

A  strong  argument  may  be  advanced,  accordingly,  in  favor 
of  the  election  of  poUce  magistrates,  in  order  that  they  may  be 
brought  into  close  touch  with  the  Hfe  of  the  district  in  which  they 
preside.  It  has  been  found,  however,  that  in  a  number  of  in- 
stances the  system  of  popular  election  only  brings  the  poKce  jus- 
tices under  the  control  of  the  poUtical  bosses  and  organizations 
supported  by  the  same  elements  which  pay  for  immunity  against 
the  enforcement  of  the  criminal  laws.  Thus  it  happens  too  often 
that  police  magistrates  are  selected,  not  because  they  understand 
sympathetically  the  problems  and  conditions  of  their  respective 
districts,  but  because  they  will  still  further  guarantee  the  im- 
munity enjoyed  by  the  criminal  elements  which,  operating 
through  party  organization,  put  them  in  power.  The  recogni- 
tion of  this  fact  has  led  in  several  large  cities  to  the  abandonment 
of  the  elective  system.  In  New  York  City,  for  example,  the  city 
magistrates,  having  power  to  try  petty  criminal  offences  and  hold 
prisoners  for  trial,  are  appointed  by  the  mayor  for  a  term  of  ten 
years;  and  the  justices  of  the  court  of  special  sessions  are  like- 
wise appointed  by  the  mayor  for  a  term  of  ten  years.  ^ 

An  important  reform  has  been  recently  accompHshed  in  our 
police  administration  by  the  establishment  of  children's  courts  in 
all  of  the  large  cities,  including  New  York,  Chicago,  Indianapohs, 
St.  Louis,  Baltimore,  Philadelphia,  and  Denver.-  The  purpose  of 
these  courts  is  to  separate  juvenile  offenders  from  the  old  and 
hardened  law-breakers,  and  to  treat  them,  not  as  criminals,  but 
as  delinquents  who  need  proper  care  and  supervision.  It  is  the 
practice,  therefore,  not  to  commit  young  first  offenders  to  insti- 
tutions of  any  kind,  but  to  let  them  out  on  probation,  unless 

^  Owing  to  the  crowded  conditions  of  the  day  courts  and  the  undesirability 
of  holding  any  one  in  prison  who  is  not  a  genuine  offender,  several  of  our 
larger  cities,  including  New  York,  have  established  night  courts. 

2  See  Review  of  Reviews,  Vol.  XXXIII,  p.  305  (1906). 


J 


Municipal  Functions  613 

their  home  influences  are  positively  pernicious,  or  their  parents 
testify  to  their  incorrigibility.  Accordingly,  there  have  been 
established  in  connection  with  the  juvenile  courts  probation 
officers  whose  business  it  is  to  visit  the  homes  of  first  offenders  to 
see  whether  the  instructions  of  the  courts  are  being  obeyed  or  the 
home  environment  is  conducive  to  the  reform  of  the  children. 
Obviously  the  work  of  this  system  depends  largely  upon  the  tact, 
humanity,  and  wisdom  of  the  probation  officers,  but  the  reform  is 
a  step  in  the  right  direction,  because  it  recognizes  the  importance 
of  laying  hold  of  offenders  early  in  their  career,  and  it  also  takes 
into  account  the  influence  of  home  environment  and  social  con- 
ditions in  the  creation  of  the  criminal.^ 

^  The  work  of  the  children's  court  in  New  York  is  thus  described  by  the 
report  of  the  clerk  of  that  court  for  1910  (New  York  Times,  January  31,  1910) : 

"  Its  work  in  withdrawing  thousands  from  the  procession  of  paupers  and 
criminals  that  press  onward  to  almshouses  and  penal  institutions,  and  making 
them  future  good  citizens,  entitles  the  court  to  be  regarded  as  one  of  the 
municipality's  most  valuable  assets.  Viewed  merely  in  the  cold  light  of 
dollars  and  cents  the  test  of  appraisement  would  be  the  civic  difference  in 
citizenship  between  preying  parasites  and  profitable  producers. 

"  The  court,  in  dealing  with  the  multitude  of  children  who  come  before 
it  each  year,  views  each  as  a  prospective  citizen,  an  individual  potentiality 
for  good  or  evil.  The  thought  of  individual  salvation  is  ever  uppermost  in 
dealing  with  each  child. 

"  If,  in  the  best  interests  of  all,  it  is  possible  to  rescue  the  child  without 
commitment  to  an  institution,  this  is  done  and  he  is  saved  to  his  home  and 
the  state  at  the  same  time.  Of  the  11,494  children  arraigned  in  this  one 
court  in  the  year  1909  only  1792  were  committed  to  institutions,  either 
charitable  or  reformatory.     .     .     . 

"  The  Justice  presiding  is  prosecutor,  defendant's  attorney  judge,  and  jury 
in  one;  in  fact,  a  big  father  in  time  of  greatest  need  to  the  unfortunate 
children  brought  before  him.  Those  charged  with  actual  offences  are  by  law 
of  course  entitled  to  the  benefit  of  counsel  which  they  always  receive,  but  there 
is  no  public  prosecutor  to  hammer  and  harass  the  young  defendants;  nor 
under  the  law  would  a  public  prosecutor  have  a  right  to  appear  and  prosecute. 

"  Where  the  case  seems  to  require  it,  ample  time  is  taken  for  an  investiga- 
tion of  home  and  other  conditions.  Frequently  it  is  the  delinquency  of  the 
parent  rather  than  of  the  child  that  is  responsible  for  the  latter's  appearance 
in  court.  This  condition  being  ascertained,  the  court  directs  that  specific 
improvements  be  made  in  the  home;  often  the  child  is  released  on  parole  on 
the  condition  that  suitable  corrections  be  made. 

"  Failure  to  obey,  the  parent  is  made  to  understand,  will  lead  to  the  commit- 
ment of  the  child  to  an  institution,  because  of  improper  guardianship, 
accompanied  by  an  order  requiring  the  father  to  pay  the  city  for  the  child's 
maintenance  while  in  such  institution.  The  court  in  this  way  often  improves 
the  condition  of  the  parents  as  well  as  the  children. 


6i4  American  Government  and  Politics 

Healthy  Tenement,  and  Fire  Departments 

With  the  growth  of  cities  and  the  progress  of  enlightenment, 
the  scope  of  the  police  power  has  broadened  far  beyond  the  limits 
of  the  term  as  understood  in  the  old  and  narrow  sense;  and  we 
are  now  creating  special  authorities  charged  with  promotion  of 
good  order  and  pubUc  welfare  through  other  than  merely  repres- 
sive measures. 

F^rst  among  these  may  be  placed  the  department  of  health. 
This  branch  of  municipal  administration  is  usually  in  charge  of  a 
board,  but  some  of  the  larger  cities,  following  the  general  ten- 
dency in  the  other  branches  of  administration,  have  created 
single-headed  departments.  In  New  York,  the  department  of 
health  is  administered  by  a  board  composed  of  the  commissioner 
of  health,  the  police  commissioner,  and  the  health  officer  of  the 
port;  and  it  is  the  duty  of  this  board  to  enforce  all  the  laws  for 
the  preservation  of  life  and  the  care  of  health  in  the  metropolis 
and  to  report  the  vital  statistics.  The  sanitary  division  of  the 
department  is  in  charge  of  a  special  superintendent  who  has  under 
him  a  force  of  sanitary  inspectors  whose  business  it  is  to  enforce 
the  sanitary  standards  laid  down  in  the  code  adopted  by  the 
department  of  health  —  a  large  and  complicated  set  of  rules  and 
regulations. 

In  general  the  labors  of  a  department  of  health  are  threefold:  * 
(i)  it  must  take  precautionary  measures  to  prevent  the  rise  and 
spread  of  disease;  (2)  it  must  inspect  offensive  streets,  sources  of 
food  supply,  and  all  places  Which  are  dangerous  to  public  health; 
and  (3)  it  must  manage  and  control  contagious  and  infectious 
diseases. 

In  close  connection  with  the  department  of  public  health  and 
sometimes  forming  a  branch  of  it,  is  the  tenement  house  and 
building  department,  charged  with  the  duty  of  maintaining  cer- 
tain standards  in  the  construction  of  public  and  private  buildings 

^  "It  has  long  been  known  scientifically  that  many  adult  criminals  are  the 
victims  of  conditions  acquired  or  hereditary  which  result  in  a  mental  dis- 
turbance predisposing  them  to  the  development  of  criminal  tendencies. 
With  such  cases  the  time  for  relief,  if  curative  or  ameliorating  remedies  are 
possible,  is  in  youth  and  at  the  first  indication  of  criminal  tendencies,  and 
the  best  opportunity  therefore  is  through  the  children's  court,  to  which  such 
imfortunates  will  naturally  drift." 

^  Fairlie,  Municipal  Admirdstration,  pp.  166  fif. 


J 


Municipal  Functions  615 

with  regard  to  light,  air,  sanitary  conditions,  and  fire  protection. 
This  is  one  of  the  latest  developments  in  American  municipal 
administration,  for,  until  recent  years,  pubUc  health  and  welfare 
were  sacrificed,  without  protest,  under  the  specious  guise  of  pro- 
tecting private  rights.  It  was  not  until  several  investigations 
disclosed  the  horrible  housing  conditions  of  Chicago,  New  York, 
and  other  cities  that  the  state  legislatures  could  be  brought  even 
to  recognize  the  imperative  necessity  for  action. 

In  this  movement,  New  York  took  the  lead  by  estabhshing 
in  1902  a  tenement  house  department.^  This  department  is  in 
charge  of  a  commissioner  appointed  by  the  mayor,  and  for  pur- 
poses of  administration  it  is  divided  into  three  bureaus :  a  building 
bureau,  to  examine  the  plans  and  specifications  for  new  and  re- 
modelled buildings;  a  bureau  of  inspection,  to  examine  com- 
pleted buildings  and  to  make  inspections  of  all  apartments  below 
a  certain  grade  measured  by  rentals;  and  a  bureau  of  records  in 
which  are  kept  plans  and  specifications  of  the  buildings  and  the 
sanitary  records  of  each  house.  A  staff  of  inspectors  is  on 
guard  against  violations  of  the  law,  and  the  commissioner  has 
large  powers  in  issuing  drastic  orders  for  alterations  and  the  re- 
moval of  objectionable  features  from  buildings. 

Provision  for  fire  protection  is  far  older  than  tenement  and 
building  departments,  but  it  obviously  stands  in  close  relation  to 
them  because  a  great  deal  of  the  enormous  waste  by  fire  in  the 
United  States  is  due  to  defective  construction  and  the  inadequate 
supervision  of  private  buildings.  Our  fire  departments  have 
grown  out  of  the  old  voluntary  system.^  In  our  large  cities,  in 
organization  ajid  technical  equipment,  the  fire  departments 
usually  excell  those  of  the  greater  European  municipalities.  The 
voluntary  element  is  steadily  being  eliminated,  the  number  of 
regulars  employed,  increased,  and  the  mechanical  devices  for 
extinguishing  fires  steadily  improved.^  In  many  large  cities 
firemen  are  required  to  pass  civil  service  examinations,  and 
special  recognition  is  often  given  to  their  labors  by  the 
establishment  of  pensions. 

^  See  Readings,  p.  540. 

^  Voluntary  fire  companies  are  still  to  be  found,  however,  as  the  sole 
force,  or  at  least  as  an  important  element,  in  small  cities  and  even  in  a 
number  of  cities  of  over  50,000  inhabitants. 

^  Zueblin,  American  Municipal  Progress,  p.  64. 


6i6  American  Government  and  Politics 

In  New  York  City,  which  in  mechanical  equipment  far  out- 
rivals all  other  cities,  the  fire  department  is  in  charge  of  a  com- 
missioner appointed  by  the  mayor;  and  it  is  divided  for 
administrative  purposes  into  three  bureaus.  The  first,  charged 
with  fighting  fire,  is  under  the  supervision  of  a  chief  who  has  below 
him  deputy  chiefs,  battahon  chiefs,  captains,  Heutenants,  and  the 
rank  and  file  of  firemen  organized  in  brigades  and  stationed  with 
their  apparatus  at  various  points  throughout  the  city.  The 
second  bureau  supervises  the  sale,  storage,  and  inspection  of 
combustibles;  and  the  third  bureau  investigates  the  origin  and 
cause  of  fires.  Like  the  other  greater  cities,  bordering  on  great 
waterways.  New  York  has  also  a  fire-boat  service  which  looks 
particularly  to  the  protection  of  shipping  and  property  along 
the  water  fronts. 

Highways  and  Transportation 

Turning  now  from  those  municipal  activities  which  have  grown 
out  of  the  newer  conceptions  of  the  poUce  power,  let  us  examine 
a  group  of  functions  connected  with  the  maintenance  and  light- 
ing of  streets  and  the  transportation  of  passengers.  It  took  the 
American  people  a  long  time  to  learn  that  a  well-paved  street  is  a 
decided  economy  for  private  persons  using  vehicles  as  well  as  an 
improvement  in  the  aesthetic  appearance  of  a  municipaUty;  but 
the  records  of  the  last  ten  years  show  a  revolution  in  this  respect,^ 
although  there  is  still  plenty  of  room  for  improvement.  Hun- 
dreds of  smaller  towns  which  twenty-five  years  ago  had  only 
gravel  roads  are  now  constructing  miles  of  brick  and  asphalt 
streets,  while  in  the  greater  cities  the  old-fashioned  cobblestone, 
which  contributes  largely  to  the  painful  noises  of  traffic,  is  being 
supplanted  by  granite  blocks,  asphalt,  and  wood.  New  York 
has  Hterally  transformed  many  crowded  districts  on  the  East 
side  by  the  use  of  asphalt;  Boston  has  laid  thousands  of  square 
yards  with  a  new  kind  of  wooden  blocks  which  seem  to  last  well 
and  certainly  reduce  the  amount  of  noise  connected  with  traffic; 
and  Buffalo  claims  to  be  among  the  first  cities  of  the  world  in  the 
quality  of  street  pavements.  Some  of  our  best  private  initiative 
and  inventive  genius  are  being  devoted  to  the  discovery  of  new 
paving  materials  and  better  methods  of  laying  and  preserving 

^  Zueblin,  American  Municipal  Progress,  p.  69.    • 


Municipal  Functions  617 

pavements,  and  our  public  sentiment  is  being  educated  to  protest 
against  the  slovenly  streets  and  general  negligence  common  a 
quarter  of  a  century  ago. 

With  this  movement  for  better  paved  streets  has  gone  a  some- 
what more  halting  movement  for  better  methods  and  more  thor- 
oughness in  cleaning  them.  Mr.  Ruskin  once  observed  that  it 
was  the  duty  of  a  city  to  keep  the  back  streets  clean  because  the 
front  ones  would  take  care  of  themselves;  but  this  idea  has  not 
been  generally  observed  in  the  United  States.  Most  of  our  cities 
rely  upon  unskilled  and  casual  day  labor  in  cleaning  their  streets 
—  only  a  few  having  learned  that  for  purposes  of  public  health 
and  comfort  the  cleaning  of  streets  is  scarcely  secondary  in  im- 
portance to  the  paving  of  them. 

In  this  field  of  municipal  activity  New  York  has  taken  a  lead- 
ing place.  In  1881,  a  separate  department  of  street  cleaning 
was  estabHshed  in  that  city,  and  to-day  that  branch  of  adminis- 
tration, in  charge  of  a  commissioner  appointed  by  the  mayor, 
supervises  the  sweeping  and  cleaning  of  the  streets  of  the 
boroughs  of  Manhattan,  the  Bronx,  and  Brooklyn,  frames 
regulations  controlUng  the  use  of  the  sidewalks  and  provides 
for  the  disposal  of  refuse.  A  noteworthy  revolution  was  made 
in  the  organization  and  methods  of  the  street-cleaning  force  under 
the  administration  of  Colonel  Waring,  a  man  of  large  mihtary 
experience  in  the  service  of  the  United  States,  who  was  appointed 
commissioner  by  Mayor  Strong  in  1895.  He  appHed  to  the 
organization  of  the  street-cleaning  force  —  then  an  army  of  1400 
sweepers  and  nearly  1000  drivers  —  the  principle  of  mihtary 
discipline.  In  spite  of  considerable  resistance,  he  compelled 
the  sweepers  to  wear  white  uniforms;  he  provided  another  uni- 
form for  the  carters  of  ashes  and  garbage ;  and,  finally,  he  devised 
a  plan  to  secure  harmonious  cooperation  throughout  the  whole 
force.^  The  result  was  astonishing;  it  dignified  the  work  of 
street  sweeping,  and  was  a  high  example  to  the  other  cities  of 
the  United  States. 

The  disposal  of  the  wastes  collected  by  the  street  cleaners  con- 
stitutes a  very  difficult  problem  of  city  administration,  for  with  the 
growth  of  the  cities  the  old  rough-and-ready  methods  of  dumping 
in  water  fronts  or  on  the  outskirts  have  become  not  only  objec- 

^  See  Readings,  p.  554. 


6i8  American  Government  and  Politics 

tionable,  but  dangerous.  Colonel  Waring  made  a  contribution 
to  the  solution  of  the  problem  by  laying  down  rules  to  be  observed 
by  private  citizens  in  the  preparation  of  their  wastes  for  disposal, 
which  require  them  to  separate  decaying  vegetable  matter  from 
ashes  and  waste  papers,  and  also  by  estabhshing  a  plant  for  the 
reduction  of  the  materials  collected  by  his  force  of  cleaners.  All 
of  our  large  cities  now  have  plants  for  the  treatment  of  wastes, 
and  many  of  them  derive  considerable  revenue  by  employing 
scientific  methods.  For  example,  the  city  of  Cleveland,  in 
1907  collected  and  reduced  37,606  tons  of  garbage.  The  cost 
of  the  work  was  $193,365.76,  but  the  income  from  the  sale  of 
the  products  —  mostly  grease  —  was  $136,985.60,  leaving  only 
$56,380.16  to  be  charged  to  taxes. 

Closely  connected  with  the  supervision  of  paving  and  clean- 
ing the  streets  is  the  problem  of  lighting  them;  but  street  light- 
ing is  more  than  a  matter  of  public  convenience  or  aesthetic  ap- 
pearance —  it  is  a  matter  of  public  safety,  being  closely  related 
to  the  prevention  of  crime.  Public  lighting  on  a  large  scale  was 
not  taken  up  in  the  United  States  until  the  practical  utility  of 
illuminating  gas  was  discovered.  In  1823  a  gas  plant  was  estab- 
lished in  Boston  and  two  years  later  in  New  York.  The  system 
was  then  rapidly  extended,  and  until  the  closing  years  of  the 
nineteenth  century  American  cities  relied  upon  gas  for  lighting 
their  streets.  In  1880,  however,  the  practicabihty  of  using 
electricity  for  illumination  was  demonstrated  by  the  installation  of 
an  arc-lighting  plant  at  Wabash,  Indiana;  and  in  competition 
with  gas,  electricity  was  easily  triumphant.  An  investigation 
made  in  1899  showed  that  there  were  3032  electric-light  plants 
in  the  United  States  as  against  965  gas  plants. 

Most  of  our  municipalities  have  relied  upon  private  corpora- 
tions to  supply  gas  for  street  illumination.  In  1903,  only  five 
cities,  out  of  175  having  a  population  of  over  25,000,  owned  and 
operated  gas  works,  while  in  two  cities,  Philadelphia  and  Toledo, 
the  works  were  owned  by  the  cities  but  leased  to  private  com- 
panies. Experiments  in  municipal  ownership  of  gas-Ughting 
plants  in  America  do  not  appear  to  have  been  either  successful 
or  popular,  although  it  is  claimed  that  many  advantages  have 
been  derived  from  pubhc  ownership  and  operation  in  Richmond, 
Virginia.  Municipal  ownership  of  electric-lighting  plants,  on 
the  other  hand,  is  far  more  common  and  more  successful.    In 


Municipal  Functions  619 

1903,  twenty- three  out  of  175  cities  having  a  population  of  over 
25,000,  and  a  large  number  of  smaller  cities,  owned  electric  plants. 
Among  these  cities  were  Cliicago,  Detroit,  Allegheny,  and  Gal- 
veston. 

Our  cities  cannot  be  contented  with  merely  paving,  cleaning 
and  lighting  the  streets;  they  must  deal  with  the  gigantic 
problem  of  transporting  thousands  of  passengers  from  place  to 
place  and  from  the  heart  of  the  city  to  the  suburbs.  Until  1880, 
the  problem  of  transportation  does  not  appear  to  have  assumed 
any  considerable  importance  in  municipal  affairs,  for  in  that  year 
there  were  only  2000  miles  of  single  track  in  the  United  States.  At 
the  present  time,  New  York  has  over  1 500  miles  and  Chicago  over 
1000  miles  —  more  than- the  whole  country  thirty  years  ago. 
An  inroad  was  made  on  the  old  horse-car  Hues  by  the  cable  system 
which  was  introduced  in  1877;  but  a  still  greater  revolution  was 
made  in  1886  when  the  first  electric  road  was  built. 

With  the  increase  of  population  it  became  impossible  to  handle 
the  traffic  by  surface  Hues.  In  1870  New  York  attacked  the 
problem  of  congested  transportation  by  the  construction  of  an 
elevated  railway,  and  in  1904  supplemented  this  by  a  subway 
along  the  principal  lines  of  transportation.  There  are  now  in 
some  streets  express  and  local  trains  underground,  surface  cars 
going  in  both  directions,  and  trains  on  the  elevated  tracks  over- 
head. Chicago  and  Boston  have  Ukewise  introduced  elevated 
lines,  and  the  latter  has  a  subway  system  as  well. 

Practically  all  of  the  systems  of  transportation  are  in  the  con- 
trol of  private  companies  operating  under  franchises  granted  by 
the  cities.^  There  is,,  however,  at  the  present  time  a  marked 
tendency  to  exercise  governmental  supervision  over  municipal 
systems  of  transportation  —  a  tendency  which  is  faciHtated  by 
the  consoHdation  of  the  various  companies  through  the  process 
known  as  "merging."  There  is  also  a  tendency  to  limit  the  fran- 
chises of  street  railway  companies  to  a  shorter  term  of  years, 
to  control  the  amount  of  capital  stock  issued,  to  require  the  issue 
of  transfers,  and,  in  some  cities,  —  notably  Cleveland,  Ohio,  — 
to  force  the  establishment  of  low  fares.  The  present  status  of 
municipal  transportation  companies  is  greatly  compHcated  by 

^  In  the  construction  of  the  New  York  and  Boston  subways,  the  principle 
of  municipal  ownership  was  introduced,  but  the  operation  was  left  to  private 
companies. 


620  American  Government  and  Politics 

the  fact  that  their  development  has  been  accompanied  by  cor- 
ruption, extravagant  methods,  and  overcapitalization,  which 
make  it  difficult  to  estabUsh  any  just  and  equitable  system  of 
supervision  and  control  on  a  purely  business  basis.^ 

Municipal  Waterworks 

Amid  the  multiplicity  of  modem  municipal  activities,  the  fur- 
nishing of  an  adequate  supply  of  pure  water  takes  high  rank.^ 
Its  relation  to  the  health  and  comfort  of  the  people  in  cities  was 
early  understood;  and  steady  improvement  in  safeguarding 
sources  of  supply  and  in  the  technical  machinery  of  distribution 
has  been  coincident  with  the  growth  of  our  cities.  To-day  more 
than  two-thirds  of  all  the  capital  in  municipal  industries 
throughout  the  United  States  is  invested  in  waterworks. 

The  history  of  public  waterworks  in  the  United  States  seems 
to  run  back  to  the  establishment  of  a  plant  in  Boston  in  1652, 
but  in  the  year  1800  there  were  only  sixteen  plants  in  the  entire 
country.  New  York  really  set  the  example  in  gigantic  enterprise 
by  constructing  the  Croton  reservoir  and  aqueduct,  which  was 
finished  in  1842.  This  historic  achievement  was  quickly  fol- 
lowed by  large  undertakings  in  other  cities,  and  at  the  close  of 
the  nineteenth  century  there  were  in  operation  more  than  3300 
plants. 

With  the  increased  facilities  for  supply  and  the  modern  plumb- 
ing conveniences,  there  has  been  a  steady  rise  in  the  daily  per 
capita  consumption  in  all  of  our  cities,  which  indicates  a  higher 
standard  of  Hfe  and  is  in  most  cities  frankly  encouraged  by  a 
liberal  policy  of  charges  and  management.  In  contrast  to  the 
consumption  of  water  in  the  cities  of  Europe,  where  the  daily 
supply  ran,  in  1900,  from  52.8  gallons  in  Paris  to  60  gallons  in 
Glasgow  and  88.6  gallons  in  Zurich,  the  per  capita  consumption 
in  the  cities  of  the  United  States  shows  a  remarkable  increase  — 
from  about  100  gallons  per  capita  to  as  high  as  200  gallons. 
The  per  capita  consumption  in  New  York  rose  from  79  gal- 
lons in  1890  to  116  gallons  in  1900. 

This  larger  consumption  of  water  is  partially  due  to  the  liberal 
poUcy  of  waterworks  management  and  partially  to  the  greater 

^For  "municipal  ownership,"  see  below,  p.  634.* 
^ Readings,  p.  5S5- 


Municipal  Functions  621 

ingenuity  with  which  modern  sanitary  appliances  are  developed 
in  the  United  States.  There  is  also  a  constant  pressure  to 
increase  this  amount,  on  account  of  the  demands  of  the  health 
and  street-cleaning  departments  for  enormous  quantities  to  flush 
the  streets  and  sewers.  It  is  doubtless  true,  of  course,  that  a 
considerable  portion  of  the  water  consumed  in  the  United  States 
is  due  to  neglect  and  leakage  and  other  wastes  —  a  neglect  which 
might  be  overcome  by  the  use  of  water  meters  for  each  private 
consumer;  but  it  is  generally  considered  better  to  lose  a  consider- 
able amount  than  to  check  the  free  use  of  water. 

Owing  to  the  difficulty  of  obtaining  an  adequate  supply  of 
pure  water  for  all  purposes  to  which  it  may  be  put,  the  question 
has  recently  been  raised  as  to  the  advisability  of  constructing 
special  plants  for  fighting  fires  and  flushing  down  the  streets. 
Certainly  a  revolution  could  be  made  in  the  comfort  of  city 
dwellers  in  the  summer  time  by  the  use  of  a  copious  supply  of 
water  in  washing  and  cooling  the  streets. 

In  the  construction  and  operation  of  water  plants  we  find  a 
more  extensive  and  more  successful  appHcation  of  the  principle 
of  public  ownership  than  in  the  case^of  any  other  municipal  util- 
ity. It  seems  that  out  of  the  sixteen  plants  in  operation  in  1800 
all  but  one  were  under  private  ownership;  but  in  1903  an  inves- 
tigation of  175  cities  of  over  25,000  inhabitants  showed  that  133 
owned  waterworks,  and  fourteen  of  the  fifteen  private  works 
in  existence  at  the  beginning  of  the  century  had  since  become 
pubHc.  The  principal  cities  retaining .  the  principle  of  private 
ownership  were  San  Francisco,  Indianapolis,  and  Omaha.  It 
is  now  the  almost  universal  practice  for  the  smaller  cities,  in 
constructing  pubHc  plants,  to  adopt  municipal  ownership;  and 
there  is  a  strong  current  in  that  direction  in  the  larger  cities. 
In  New  York  City  the  principle  of  municipal  ownership  has  been 
steadily  maintained,  and  every  year  the  waterworks  depart- 
ment shows  a  large  net  revenue. 

The  principle  of  municipal  ownership  has  made  great  headway 
because  the  cities  have  learned  from  practical  experience  that 
when  a  franchise  is  once  granted  to  a  private  company  it  is 
difficult  for  the  municipality  to  regain  control,  even  when  the 
terms  are  apparently  stated  very  explicitly.  For  example,  in 
1868,  Los  Angeles,  California,  entered  into  a  thirty  years'  contract 
with  a  private  company  for  a  supply  of  water,  and  when  the  city 


622  American  Government  and  Politics 

sought  to  recover  control  at  the  expiration  of  the  term,  it  had 
to  wage  a  long  and  expensive  battle  in  all  of  the  courts  that  could 
possibly  get  jurisdiction  over  the  case,  and  in  the  end  was  com- 
pelled to  pay  an  enormous  price  for  the  plant  and  the  interests 
of  the  company/ 

Municipal  Institutions  for  Social  Welfare^ 

The  functions  of  poHce  administration,  public  supervision  of 
transportation,  and  the  supply  of  water  have  long  been  regarded 
as  proper  spheres  of  public  activity  and  control  even  by  the 
stoutest  champions  of  private  rights;  but  within  recent  years 
there  has  been  manifested  in  Europe  and,  to  some  extent,  in  the 
United  States  a  growing  demand  for  the  city  to  undertake  a  large 
variety  of  activities  which  were  once  regarded  as  wholly  outside 
the  field  of  public  enterprise.  This  demand  is  not  due  to  theory, 
but  rather  to  the  conditions  of  the  modem  industrial  city  which 
have  deprived  the  inhabitants  of  the  air,  sunlight,  outdoor  exer- 
cise, and  certainty  of  employment  which  are  found  in  communi- 
ties depending  principally  upon  agriculture  for  their  support. 
With  the  progress  of  dem(?cracy,  moreover,  there  has  come  a 
demand  for  a  higher  standard  of  individual  enlightenment,  com- 
fort, and  welfare,  even  at  the  sacrifice  of  that  exaggerated  notion 
of  private  rights  which  would  allow  every  person  to  do  as  he 
pleases  as  long  as  he  does  not  positively  deprive  his  neighbors 
of  Hfe  and  Hmb. 

Undoubtedly  a  change  has  been  coming  in  pubHc  sentiment 
in  the  United  States  during  the  past  twenty-five  years.  With 
the  opening  of  the  West  and  the  rapid  upbuilding  of  our  industries 
nearly  every  social  right  was  thrust  aside  in  the  interests  of  those 
who  were  devoting  themselves  to  the  task  of  augmenting  their 
private  fortunes.  Cities  were  laid  out  with  Httle  or  no  regard 
for  the  future,  for  artistic  considerations,  or  for  the  comfort  and 
welfare  of  the  dwellers  therein.  The  land  speculator  was  su- 
preme, and  his  ideas  dominated  state  legislatures  and  city  coun- 
cils, except  in  so  far  as  they  came  into  conflict  with  other  [private 
interests  seeking  franchises  and  other  municipal  privileges.  But 
at  length  new  forces  working  for  public  good  rather  than  for 

^  Wilcox,  The  American  City,  p.  46. 

2  Reference  :  Fairlie,  Municipal  Administration. 


Municipal  Functions  623 

private  advantage  began  to  appear  in  our  municipal  life;  and 
during  the  last  generation  there  has  come  a  new  conception  of 
a  city  —  a  conception  of  it  as  a  place  to  live  in  rather  than  a 
mere  market  in  which  a  chosen  few  may  build  up  their  private 
fortunes.  This  notion  has  appeared  in  a  variety  of  ways,  in  the 
extension  and  development  of  popular  education,  in  the  planning 
of  streets  with  regard  to  future  welfare,  in  the  cleaning  out  of 
slum  areas,  in  the  provision  of  parks,  playgrounds,  and  recrea- 
tional centres,  in  the  construction  of  pubhc  hospitals  and  sani- 
tariums, in  the  stricter  supervision  of  the  milk  and  food  supply, 
and  in  a  thousand  other  ways  which,  though  apparently  insig- 
nificant in  themselves,  show  that  we  are  abandoning  our  old 
reckless  indifferentism  and  rampant  individualism. 

Many  forces  have  contributed  to  this  change  in  the  current  of 
public  opinion.  Through  university  settlements,  students  of 
social  problems  have  come  into  actual  contact  with  the  sad  real- 
ities which  the  working-class  of  the  great  cities  must  face.  Hull 
House  in  Chicago,  Neighborhood  Guild  in  New  York,  the  South 
End  House  in  Boston,  and  many  other  social  settlements  have 
been  centres  of  light  in  which  those  who  have  great  influence  in 
directing  the  current  of  pubHc  thought  have  been  able  to  learn 
things  undreamed  of  by  the  preceding  generation.  Private 
investigations  into  the  wages  and  conditidns  of  life  in  the  great 
cities  —  investigations  such  as  those  made  in  Chicago  and 
in  Pittsburg  —  have  made  public  concrete  facts  which  were 
before  the  subject  of  speculation. 

Moreover,  an  ever  larger  attention  is  being  paid  by  the  students 
and  teachers  of  government  to  the  problems  of  municipal  life, 
and  without  doubt  the  investigations  and  experiments  of  Euro- 
pean cities  have  thrown  the  greatest  Hght  upon  our  problems. 
One  thing  we  have  learned,  above  all,  from  England  is  that  the 
unrestrained  development  of  city  life  along  the  lines  followed 
in  the  nineteenth  century  means  poverty,  physical  degeneration, 
and  positive  deterioration  in  the  moral  character  of  the  dwellers 
in  overcrowded  city  areas.  What  boots  it  to  develop  great 
commerce  and  empire  and  to  continue  to  perfect  the  great  scien- 
tific achievements  of  the  nineteenth  century,  if  the  heart  of  the 
nation  is  to  decay  through  the  physical  demoralization  of  those 
who  do  the  world's  elemental  work? 

It  is  impossible  to  give  here  anything  like  an  adequate  treat- 


624  American  Government  and  Politics 

ment  of  the  problems  of  municipal  government,  because  they  are 
connected  with  those  larger  problems  of  state  and  national  life, 
the  study  and  exposition  of  which  belong  rather  to  the  domain 
of  poHtical  economy  than  to  government.  However,  it  seems 
desirable  to  make  at  least  a  hasty  survey  of  the  newer  develop- 
ments in  American  municipal  life — slight  and  unsatisfactory  as 
they  may  seem. 

It  is  perhaps  along  educational  lines  that  our  cities  have  made 
their  greatest  advances.  Although  America  is  supposed  to  have 
adopted  the  principle  of  free  and  universal  education  early  in  her 
history,  its  practical  apphcation  in  our  municipaUties  has  been 
of  slow  evolution.  The  foundation  of  our  elementary  schools 
was,  however,  securely  laid  by  the  middle  of  the  nineteenth  cen- 
tury, and  the  last  decades  of  that  century  showed  an  astounding 
development.  From  1870  to  1899  the  enrolment  of  children  in  the 
elementary  schools  (urban  and  rural)  increased  from  7,500,000  in 
round  numbers  to  15,000,000,  and  the  percentage  of  school  popu- 
lation rose  from  61.45  to  69.34;  and  during  the  same  period  the 
number  of  male  teachers  advanced  from  90,293  to  131,793,  while 
the  number  of  women  employed  in  our  public  schools  rose  from 
129,932  to  283,867.  The  development  of  high  schools  belongs 
to  a  later  period,  for  as  late  as  1880  there  were  only  about  one- 
third  as  many  students  in  pubhc  high  schools  as  there  were  in 
private  academies.  In  a  Httle  less  than  twenty  years,  however, 
the  number  of  students  in  the  pubUc  high  schools  increased  from 
26,609  to  476,227  —  more  than  four  times  the  number  enrolled 
in  private  academies.^ 

^  Expenditures  for  education  of  typical  cities  in  1905  (including  libraries 
and  museums) : 

ORDER  IN  SIZE. 

1.  New  York $22,613,911 

2.  Chicago,  111 7,593,302 

3.  Philadelphia,  Pa 5,213,215 

4.  St.  Louis,  Mo 2,169,164 

5.  Boston,  Mass 3,983,141 

14.  New  Orleans,  La 626,413 

39.  Portland,  Ore 433,129 

40.  Atlanta,  Ga 231,818 

Statistics  of  Cities  having  a  Population  of  over  30,000  :  igo^  (Special  Re- 
ports of  the  Bureau  of  Census),  pp.  180-186. 


Municipal  Functions  625 

It  is  not  merely  in  numbers  that  our  educational  progress  can 
be  measured.  The  advance  made  in  the  design,  construction, 
artistic  effect,  and  conveniences  of  our  modern  city  schools  can 
only  be  understood  by  one  who  contrasts  a  building  of  1910 
with  one  of  1850.  The  standards  of  scholarship  required  of 
teachers  have  also  appreciated  immeasurably,  and  the  notions 
of  popular  education  have  extended  far  beyond  the  mere  routine 
of  the  three  ''R's. "  Indeed,  the  schools  of  our  cities  are  slowly 
becoming  social  centres;  the  playground  and  recreational  fea- 
tures are  being  developed;  vacation  schools,  affording  social 
life  to  the  children  of  the  congested  centres,  are  rapidly  multiply- 
ing; and  there  is  a  constant  searching  among  educationalists  for 
better  methods  in  instruction  and  for  more  effective  ways  for 
raising  through  the  school  system  the  standards,  not  only  of 
intellectual  but  of  physical  and  moral  Hfe,  in  our  crowded  cities. 
Out  of  a  total  budget  of  $156,000,000,  in  1909,  the  city  of  New 
York  appropriated  $26,700,000  for  the  department  of  education.^ 

The  control  of  education  in  American  cities  is  usually  vested 
in  a  board  which  is  either  a  department  of  the  city  government 
or  an  entirely  separate  body,  as  in  Boston,  where  it  consists  of 
members  elected  by  popular  vote.  In  New  York  City  the  board 
consists  of  forty-six  members,  appointed  by  the  mayor  and 
serving  without  salary.  In  several  of  the  cities,  notably  in  the 
West,  the  school  board  is  an  elective  body  standing  apart  from 
the  government  of  the  city  and  sometimes  controlling  even  the 
raising  and  disbursing  of  the  public  funds  for  education.  While 
it  is  impossible  to  fix  upon  any  definite  form  of  school  authority 
for  all  American  cities,  we  may  accept  the  following  statement, 
from  a  report  of  the  federal  Commissioner  of  Education,  as  ap- 
proximating the  description  of  a  typical  municipal  school  board: 

A  board  of  education  is  created  by  law  whose  members  are  se- 
lected by  the  people,  serve  without  pay,  and  have  full  legal  power  to 
establish  and  control  free  public  schools  for  all  children  of  school  age 
within  the  limits  of  the  city.  Each  year  they  make  estimates  in  detail 
of  the  amounts  of  money  required  for  the  schools  during  the  next 
coming  year,  which  estimates  are  submitted  to  the  city  council.  That 
body  appropriates  money  for  those  purposes,  named  in  the  estimates, 
which  they  think  necessary  and  proper  in  view  of  all  the  other  needs 

^  On  the  development  of  education  in  general,  see  below,  p.  746. 

25 


626  American  Government  and  Politics 

of  the  city  government  and  of  the  expected  revenue  from  the  taxes 
which  they  think  it  expedient  to  levy.  The  money  once  appropriated 
is  controlled  by  the  board  of  education,  who  buy  sites,  build  and 
repair  schoolhouses,  purchase  supplies,  and  pay  the  necessary  offi- 
cers and  teachers.  They  make  regulations  for  the  management  of 
the  system  and  employ  as  their  executive  officers  a  secretary  and  a 
superintendent,  the  former  to  look  after  the  details  of  their  business 
affairs  and  the  latter  to  have  special  care  of  all  matters  relating  to 
instruction.  ^ 

New  York  City,  adopting  the  principle  that  education  should 
not  be  limited  merely  to  the  young,  but  should  be  extended 
throughout  the  whole  period  of  life,  has  established  a  system  of 
free  night  lectures  in  the  public  school  buildings  and  at  other 
available  centres.  These  lectures  are  conducted  under  a  super- 
visor, acting  in  conjunction  with  the  board  of  education.  The 
system  has  been  quite  properly  called  "the  people's  university," 
for  the  courses  of  lectures  offered  cover  every  important  subject 
in  science,  art,  literature,  history,  and  political  economy  which 
can  be  of  interest,  utility,  and  entertainment  to  the  great  body 
of  citizens  who  desire  to  improve  their  intellectual  attainments 
while  pursuing  their  daily  vocations.  A  special  effort  is  made 
to  reach  the  foreign  population  of  the  metropolis  by  lectures  on 
American  history  and  institutions  given  in  their  native  tongues.^ 
Boston,  Philadelphia,  Chicago,  and  Milwaukee^  have  followed 
the  example  of  New  York,  though  not  on  so  large  a  scale;  and  if 
the  system  is  extended,  as  it  promises  to  be,  the  public  schools 
will  become  not  only  institutions  for  the  diffusion  of  knowledge 
among  the  people  of  all  ages  and  conditions,  but  they  will  become 
social  centres  in  which  community  interest  and  fraternal  feeling 
will  be  developed. 

Popular  education  in  the  United  States  is  further  facilitated 
by  the  establishment  of  public  libraries.  It  seems  that  Boston 
led  the  way  in  this  regard,  for  as  early  as  1847  the  city  council 
at  the  suggestion  of  Mayor  Quincy  passed  a  resolution  asking  the 

*  Report  of  Commissioner  of  Education  (1895-96),  Vol.  I,  p.  2>2>-  Quoted  in 
Fairlie,  op.  cit.,  p.  204. 

2  There  are  regular  night  schools  in  many  cities  for  those  otherwise 
engaged  in  the  daytime. 

^  Rochester,  New  York,  is  probably  one  of  the  most  advanced  cities  in 
matter  of  the  use  of  schools  as  civic  centres. 


I 


Municipal  Functions  627 

state  legislature  for  permission  to  open  a  free  library  supported 
by  taxation.  Nearly  every  northern  state  has  followed  the  prec- 
edent set  by  Massachusetts,  and  with  the  exception  of  Connect- 
icut and  New  York  all  of  them  have  Hbrary  legislation  of  a  pro- 
gressive type.  Our  great  cities  not  only  have  pubhc  libraries 
well  stocked  with  books  for  general  reading  and  research  work, 
but  they  have  been  steadily  developing  the  system  of  branch 
libraries  which  makes  the  books  available  to  the  inhabitants  of 
every  district.  Until  1902,  Chicago  led  in  the  number  of  branch 
hbraries  and  the  circulation  of  books,  but  in  that  year  Phila- 
delphia took  the  lead. 

Quite  recently,  however.  New  York  City  has  made  a  marked 
advance.  In  the  great  pubHc  library  in  the  process  of  building 
at  Forty-second  Street  and  Fifth  Avenue  will  be  stored  the 
valuable  collections  of  the  Astor,  Lenox,  and  Tilden  foundations, 
which  will  give  the  metropolis  one  among  the  first  libraries  in  the 
country.  A  large  gift  by  Andrew  Carnegie  has  made  it  possible 
for  the  city  to  erect  and  maintain  at  well-selected  points  no  less 
than  sixty-five  branches.  It  is  estimated  that  nearly  two 
miUion  books  are  freely  at  the  disposal  of  the  citizens  of  New 
York  and  that  the  annual  circulation  amounts  to  more  than  four 
milhon  volumes.  An  ever  increasing  attention  is  given  to  the 
needs  of  children  through  the  school  libraries  and  through  the 
special  collections  now  to  be  found  in  the  pubUc  Hbraries.^ 

Our  cities  are  coming  slowly  to  reaUze  that  the  provision  for 
healthful  recreation  for  the  great  mass  of  the  population  is  a 
collective  function  which  must  be  undertaken  by  the  munici- 
pahty  at  pubhc  expense.  In  the  provision  of  parks  and  boule- 
vards, the  cities  of  the  United  States  have  made  giant  strides 
within  the  last  quarter  of  a  century.  Perhaps  Boston  takes  first 
place,  for,  besides  the  famous  Common  and  Pubhc  Garden,  that 
city  has  more  than  seventy  small  parks  and  playgrounds,  in  ad- 
dition to  the  local  parks  and  the  reservations  in  the  environs. 
New  York  City  has  also  given  some  attention  to  the  problem 
of  reserving  breathing  spaces.  Almost  in  the  heart  of  the  city 
there  is  the  famous  Cei;tral  Park;  Brooklyn  has  the  scarcely  less 
beautiful  Prospect  Park ;  and  to  the  northward  New  York  has 
reserved  Riverside,  Washington,  and  the  Bronx  parks.     Never- 

*  Zueblin,  American  Municipal  Progress,  pp.  173-188;  A  Decade  of  Civic 
Development,  p.  120. 


628  American  Government  and  Politics 


1 


theless,  there  is  still  a  lamentable  lack  of  suitable  provisions,  it 
being  estimated  that  there  is  only  one  square  foot  of  playground 
for  each  child  in  the  metropolis;  and  the  large  parks  are  nearly 
out  of  reach  of  those  who  need  them  most. 

Every  city  of  importance  has  now  one  or  more  great  open 
spaces,  but  in  making  these  provisions  city  governments  have 
too  often  overlooked  the  fact  that  many  small  parks,  conven- 
iently scattered  through  the  congested  areas,  are  of  far  greater 
utility  than  wide  areas  on  the  outskirts  of  the  city,  or  at  best  so 
situated  that  they  can  be  reached  only  by  the  payment  of  car  fare 
—  an  important  matter  for  the  children  of  the  poor.  Chicago, 
for  example,  recently  had  700,000  people  Uving  more  than  a  mile 
from  any  large  park.  The  chief  parks  of  Los  Angeles  and  Kan- 
sas City  are  entirely  without  the  city  limits;  and  in  St.  Louis 
the  large  parks  are  all  in  one  side  of  the  city.^  It  must  be  ad- 
mitted, however,  that  the  evils  of  such  a  distribution  of  parks 
are  being  recognized,  and  some  cities  that  have  been  the  worst 
offenders  in  this  respect  have  attempted  to  make  amends  within 
the  last  decade. 

Cities  are  also  endeavoring  to  make  the  parks  especially  attrac- 
tive by  providing  athletic  sports,  such  as  baseball,  tennis,  golf, 
and  dancing.  Many  give  band  concerts  in  the  parks  in  sum- 
mer time  and  pubhc  fetes  on  holidays,  that  are  widely  advertised 
to  attract  adults  as  well  as  children.  Cleveland,  Ohio,  for  ex- 
ample, gave  thirty-seven  Sunday  and  twenty-six  evening  band 
concerts  during  the  summer  of  1906  in  the  parks,  so  distributed 
as  to  give  equal  benefits  to  all  parts  of  the  city.  May  Day, 
Turners'  Day,  Old  Settlers'  Day,  and  Orphans'  Day,  were  the 
occasions  of  special  celebrations;  twenty  baseball  diamonds  were 
laid  out  in  the  parks  and  thirty  on  vacant  lots;  and  eight  pubhc 
playgrounds  equipped  with  swings,  sand  piles,  horizontal  bars, 
and  other  apparatus,  in  the  charge  of  athletic  directors,  were 
maintained.^ 

The  physical  and  social  value  of  healthful  play  for  children  is 
being  recognized  more  and  more  by  the  estabhshment  of  play- 
grounds, not  only  in  parks,  but  in  connection  with  the  pubhc 
schools  and  at  special  points  in  the  congested  areas.  Boston  has 
equipped  the  school  yards  as  playgrounds  for  children  and  pro- 

*  Zueblin,  American  Municipal  Progress,  pp.  241-274. 

*  See  Readings,  p.  546. 


Municipal  Functions  629 

vided  teachers  to  take  charge  of  the  games  and  gymnastic  exer- 
cises. New  York  has  followed  this  example,  and  now  has  a  law 
requiring  the  provision  of  a  playground  with  every  new  school 
building.  In  the  winter  time,  Chicago,  New  York,  Boston,  and 
some  other  cities  flood  the  playgrounds  and  turn  them  into  skat- 
ing rinks.  Chicago  recently  provided  no  less  than  two  hundred 
of  these  rinks,  Kghted  by  electricity  and  open  day  and  night. 

Some  indication  of  what  an  enterprising  city  can  do  is  afforded 
by  the  recent  experiments  of  the  South  Park  Board  in  Chicago.^ 
That  board  secured  in  1903  from  the  state  legislature  the  power 
to  create  a  number  of  new  small  parks,  and  thereupon  made  a 
careful  investigation  of  the  recreational  needs  of  the  great  con- 
gested area  under  its  jurisdiction.  Within  three  years  the  board 
had  estabHshed  fourteen  parks  ranging  in  area  from  six  to  seventy 
acres  at  an  expense  of  over  $6,000,000.  Combining  all  of  the 
recent  devices  of  social  settlements,  kindergartens,  and  other 
recreational  centres,  the  board  sought  to  make  these  new  parks 
as  attractive  as  possible  to  children  and  adults,  and  at  the  same 
time  to  develop  healthful  recreation  to  the  fullest  extent.  It 
accordingly  provided  ball  fields,  tennis  courts,  swimming  pools, 
sand  piles,  swings,  lagoons  for  rowing  and  skating,  stands  for 
band  concerts,  and  outdoor  gymnasiums  for  girls  and  women  and 
boys  and  men.  It  furthermore  established  indoor  recreation 
buildings  equipped  with  shower  and  plunge  baths  and  lockers, 
and  lunch,  reading,  club,  and  assembly  rooms.  In  the  winter 
time,  lectures,  dancing,  and  musical  entertainments  are  given 
in  the  assembly  halls.  The  various  recreational  features  are 
under  capable  athletic  directors.^ 

IE.  Poole,  "Chicago's  Public  Playgrounds,"  Outlook,  Vol.  LXXXVII, 
Dec.  7,  1907. 

I  2  The  spirit  of  this  new  movement  in  Chicago  in  behalf  of  physical  welfare 
s  revealed  in  these  extracts  from  the  private  directions  issued  to  the  in- 
itructors  in  the  South  Park  gymnasiums : 

"Whether  we  wish  it  or  not,  the  gymnasium  and  the  athletic  field  are 
ichools  of  character,  but  the  kind  of  character  formed  in  these  schools  will 
lepend  in  great  measure  upon  the  instructor  in  charge.  On  the  athletic 
ield,  and  in  the  practice  of  games  in  the  gymnasium,  the  instructor  should 
>raise  every  tendency  of  a  boy  or  girl  to  sacrifice  himself  or  herself  for  the 
;ood  of  the  team.  Show  them  that  this  is  the  only  way  to  succeed  —  by 
nity  of  action.  If  you  can  develop  this  spirit,  you  have  laid  the  foundation 
f  cooperation,  politeness,  and  good  morals.     You  have  taught  the  funda- 


630  American  Government  and  Politics 

Unfortunately  the  splendid  example  set  by  the  South  Park 
Board  of  Chicago  has  not  been  followed  very  extensively  by 
other  cities.^  Unquestionably,  however,  all  our  cities  will  soon 
recognize  play  as  an  essential  part  of  an  educational  system, 
and  healthful  recreation  for  adults  as  indispensable  to  the  main- 
tenance of  a  high  standard  of  physical  comfort  and  efficiency. 

Cities  are  also  recognizing  to  some  extent  the  place  of  personal 
cleanliness  in  the  general  scheme  of  things  and  are  making  pro- 
vision for  pubUc  baths.  The  law  of  the  state  of  New  York  makes 
the  construction  of  free  baths  obligatory  upon  cities  with  over 
50,000  inhabitants  and  permissible  for  others.  In  1908,  the 
investment  of  the  city  of  New  York  in  municipal  baths  amounted 
to  $3,000,000,  and  eight  large  bathing  places  were  in  operation 
in  the  borough  of  Manhattan  alone.  Boston  also  has  an  exten- 
sive system  of  public  baths  and  provides  instruction  in  swimming; 

mental  lesson  of  thoughtfulness  for  others.  Keep  in  mind  that  we  are  public 
servants,  employed  to  serve  the  public  as  experts  in  all  that  our  profession 
implies,  and  that  we  are  engaged  in  a  work  which,  if  properly  conducted,  is 
perhaps  better  calculated  to  raise  tha.  standard  of  good  citizenship  than  any 
other  single  agency  in  the  hands  of  public  servants. 

"It  is  of  the  greatest  importance  that  all  work  be  undertaken  in  the  light 
of  the  objects  sought,  as  follows: 

"  First,  to  take  children  from  the  streets  and  alleys  and  give  them  a  better 
environment  and  safer  place  in  which  to  play.  This  will  relieve  the  parents 
of  care  and  anxiety  — as  well  as  truck  drivers,  street  car  men,  policemen, 
and  others  who  are  involved  in  the  care  of  children. 

"  Second,  to  encourage  working  boys  and  girls  and  adults  to  spend  the 
idle  hours  in  a  wholesome  environment  and  away  from  questionable  amuse- 
ments. 

"  Third,  to  encourage  both  children  and  adults  to  give  attention  to  personal 
hygiene  —  exercise  and  bathing  chiefly. 

"  Fourth,  to  furnish  wholesome  amusement  for  adults  and  others  who  do 
not  participate  in  the  activities  of  the  gymnasium,  athletic  and  play  fields. 

"  Plan  your  work,  then,  and  carry  it  forward  with  the  well-defined  idea 
that  you  are  striving,  first,  to  attract  both  children  and  adults  to  your  gym- 
nasium, play  and  athletic  fields;  second,  that  after  you  get  them  there  you 
must  interest  and  hold  them  until  the  habit  of  frequenting  your  gymnasium 
is  established;  third,  that  you  do  all  you  can  by  means  of  your  gymnasium 
programme,  athletics,  plays,  and  games,  to  'set  up'  the  frame,  encourage  bath- 
ing, teach  skill,  courage,  and  a  wholesome  respect  for  the  rights  of  others." 

From  The  American  City,  October,  1909. 

*  New  York  City  has  endeavored  to  attract  the  people  to  the  water  front 
by  building  recreational  piers  above  the  regular  docks  so  as  not  to  interfere 
with  traffic,  and  by  providing  music  at  these  places  on  summer  evenings. 


Municipal  Functions  631 

Chicago,  Buffalo,  Baltimore,  and  Louisville,  and  in  fact  nearly 
all  cities  of  any  importance,  have  their  bath-houses  open  all  the 
year  round.  This  municipal  function  has  not  been  developed 
in  the  United  States  to  the  same  extent,  however,  as  in  Europe, 
but  this  is  largely  due  to  the  fact  that  the  sanitary  arrangements 
of  our  tenements  and  private  houses  are  more  advanced. 

These  various  experiments  in  municipal  reform,  valuable  as 
they  undoubtedly  are,  by  no  means  solve  the  most  fundamental 
problems  of  modern  urban  life;  but  these  problems  are  connected 
with  the  larger  questions  of  poverty,  industry,  transportation, 
agriculture,  and  the  development  of  our  natural  resources  — 
questions  which  fall  within  the  domain  of  economics  rather  than 
of  government  strictly  speaking.  Nevertheless,  it  would  give  an 
entirely  mistaken  notion  of  the  nature  and  scope  of  government 
to  pass  over  without  notice  some  of  the  more  purely  municipal 
issues. 

At  the  outset  there  is  the  grave  problem  of  overcrowding, 
which  has  reached  such  an  alarming  condition,  that  in  New  York 
City  the  death  rate,  16.5  per  thousand  in  1908,  was  higher  than 
in  Berlin  or  London,  where  it  was  15.4  and  13.8  per  thousand 
respectively.  It  is  now  well  established  that  the  death  and  sick- 
ness rates  fluctuate  with  the  wages  and  home  conditions  of  the 
people.^  It  is  authoritatively  stated  that  the  "annual  econo- 
mic waste  from  preventable  diseases  in  New  York  City  ranges 
from  $37,000,000  to  $40,000,000,"  and  this  is  largely  due  to 
overcrowding.  Furthermore  ^'the  density  of  population  in- 
creases with  the  decrease  of  wages  and  overcrowding  is  greatest 
where  wages  are  lowest." 

The  land  question  of  the  city  takes,  therefore,  first  rank  at  the 
present  time.  It  is  a  well-known  fact  that  the  value  of  ground 
in  our  large  cities  increases  with  astonishing  rapidity  —  not 
through  the  effort  of  the  owners  or  of  any  single  private  individ- 
ual, but  through  the  growth  of  industry  and  population.  The 
following  figures,  showing  the  appreciation  in  the  value  of  the 
land  alone  in  certain  New  York  City  blocks,  illustrate  this  state- 
ment in  a  concrete  way;  and  it  must  be  noted  that  these  blocks 
are  not  within  the  very  heart  of  the  city  where  the  pressure  of 
the  population  is  greatest:  — 

*  Rowntree,  Poverty  (London,  1901),  and  Hunter,  Poverty  (New  York,  1904.) 


632 


American  Government  and  Politics 


Land 

Block 

1904 

1908 

8125  W 

$367,500   . 

$456,000 

9125 

529,600 

796,700 

9125  W 

182,000 

229,000 

9130  W 

170,900 

234,000 

9131  w 

278,000 

469,500 

10124 

549,000 

782,700 

10125 

540,500 

776,000 

10126  n.e 

449,600 

576,200 

10127  n.w 

122,000 

290,400 

10131  e 

222,000 

357,500 

10132  e 

257,000 

403,000 

10133 

421,000 

634,700 

11132 

261,000 

383,000 

Average  appreciation  46.86  per  cent.^ 


The  recognition  of  the  fact  that  an  enormous  annual  tribute 
of  "unearned  increment"  is  paid  to  the  owners  of  city  lands 
without  any  service  in  return  on  their  part  has  led  a  group  of 
reformers,  known  as  the  "single  taxers,"  to  advocate  the  diversion 
of  this  money  to  the  public  treasury  by  way  of  taxation.  Mr. 
Henry  George,  who  was  the  founder  of  this  movement  in  America, 
declared  that  this  single  tax  absorbing  all  unearned  increment 
in  land  values  would  "raise  wages,  increase  the  earnings  of  capi- 
tal, extirpate  pauperism,  abolish  poverty,  give  remunerative 
employment  to  whoever  wishes  it,  afford  free  scope  to  human 
powers,  lessen  crimes,  elevate  morals  and  taste  and  intelligence, 
purify  government,  and  carry  civiHzation  to  yet  nobler  heights." 
Without  sharing  this  generous  hope  or  examining  the  several 
objections  which  may  be  brought  against  the  rigid  application 
of  the  single  tax  doctrine,  one  may  certainly  conclude,  with 
Professor  Seager,  that  a  gradual  increase  in  the  proportion  of  the 
municipal  taxation  that  falls  on  land,  as  distinguished  from  im- 
provements and  different  forms  of  personal  property,  is  much  to 

^  H.  B.  Woolston,  ^  'Study  of  the  Population  of  Manhattanville  (Columbia 
University  Studies),  p.  155;  the  table  is  based  on  the  official  assessors'  lists. 
2  Seager,  Economics :  Briefer  Course,  p.  434. 


Municipal  Functions  633 

be  desired.^  "There  is  reason  to  think,"  continues  Professor 
Seager,  "that  especially  in  large  cities^  absentee  landlordism 
is  becoming  more  and  more  the  rule  for  the  simple  reason  that 
more  and  more  people  are  coming  to  Uve  in  tenement  and  apart- 
ment houses.  If  this  is  the  case  there  may  be  good  ground  for 
the  contention  that  the  system  of  private  property  in  land  is 
ceasing  to  serve  any  useful  purpose  in  cities  which  the  system  of 
pubHc  ownership  would  not  serve  as  well,  and  that  the  time  is 
ripe  for  a  gradual  transition  to  the  latter."  ^ 

The  land  question  is  involved  in  another  fundamental  problem, 
—  how  to  plan  a  city  with  a  view  to  its  future  growth,  the  health, 
comfort,  employment,  and  standard  of  Hfe  of  all  of  the  inhabit- 
ants.^ The  use  of  a  Httle  foresight,  the  adoption  of  a  sound 
pubhc  policy,  and  a  greater  disregard  for  that  clamor  which 
would  transform  every  public  utility  into  private  property  would 
have  saved  the  Hves  of  countless  thousands  of  city  dwellers  in  the 
United  States  and  would  have  made  the  Uving  conditions  to  those 
who  survived  infinitely  more  tolerable.  Every  day  that  social 
control  over  city  planning  is  delayed  makes  more  difiicult  the 
problem  of  securing  to  the  people  the  social  values  created  by  the 
growth  of  cities,  and  of  providing  proper  air,  Hght,  and  sunshine 
for  the  city  dwellers  —  in  a  word,  the  great  problem  of  making 
the  city  a  place  where  the  standard  of  physical  efficiency,  upon 
which  in  the  long  run  the  very  existence  of  the  nation  itself  de- 

*  Table  showing  the  percentage  of  inhabitants  of  great  cities  owning  their 
own  homes. 

CmES  Owning  Homes  Stgage 

Baltimore 27.9  per  cent 20 . 5  per  cent 

Boston 18.9  "  "  9.2  " 

Buffalo 32.9  "  "  15-8  " 

Chicago 25.1  **  "  II. 9.  " 

Cincinnati 20.9  "  "  13.9  " 

Detroit 39.1  "  "  22.5  " 

Indianapolis 33 . 7  "  "  18.  i  " 

New  Orleans 22.2  "  "  19. i  " 

New  York  City 12 .  i  "  "  

Manhattan  and  Bronx 5.9  "  "  2.3  " 

Philadelphia 22.1  "  "  12. i  " 

San  Francisco 24 .  i  "  "  16  " 

Goodnow,  City  Government  in  the  United  States,  p.  15. 

^  Economics  :   Briefer  Course,  p.  434. 

^  Goodnow,  Municipal  Government,  p.  332  ff. 


634  American  Government  and  Politics 

pends,  may  be  maintained  at  the  highest  point.  There  is  no  room 
here  to  dwell  at  length  upon  this  important  and  technical  branch 
of  public  economy.^  Whoever  doubts  the  part  that  will  be  played 
in  the  future  by  scientific  city  planning  may  compare  the  broad 
avenues  and  streets  of  Washington  with  the  narrow,  dark,  dismal, 
and  crooked  lanes  of  the  older  parts  of  Boston  and  New  York.- 


Municipal  Ownership 

In  connection  with  the  extension  of  the  activities  of  the  mu- 
nicipality, has  arisen  the  question  of  how  far  these  functions  should 
be  given  over  to  private  companies  and  contractors  and  how 
far  they  should  be  conducted  by  municipal  authorities  themselves. 
Street  railways,  gas,  electric  light  and  water  plants,  and  many 
other  municipal  utilities  are  in  the  nature  of  things  monopolies, 
so  that  competition  seldom  enters  as  a  factor  in  regulating  prices 
and  services.  For  example,  it  is  clear  that  there  can  only  be  one 
street  car  hne  on  any  street  and  the  company  which  owns  any 
such  hne,  if  free  from  public  control,  may  fix  any  charge  which 
the  "traffic  will  bear." 

In  the  beginning  of  our  municipal  history  the  nature  of  muni- 
cipal monopolies  was  not  understood  by  state  legislators,  or,  if 
understood,  it  did  not  deter  them  from  bestowing  almost  price- 
less pubUc  privileges,  without  restrictions,  upon  private  interests. 
The  story  of  these  franchises  and  the  corruption  connected  with 
them  makes  one  of  the  most  sordid  pages  in  the  history  of  our 
country;  but  fortunately  within  the  last  decade  there  has  come  a 
gradual  awakening  of  public  sentiment  on  the  question,  and  the 
day  of  free  and  uncontrolled  exploitation  of  municipal  monopohes 
seems  to  be  about  past. 

An  examination  of  the  present  methods  of  conducting  munici- 

1  See  B.  C.  Marsh,  An  Introduction  to  City  Planning,  and  H.  I.  Triggs, 
Town  Planning.     (London,  1909.) 

2  There  is  now  on  foot  in  Boston  a  "1915  Movement,"  designed  to  enlist 
widespread  conscious  effort  in  improving  the  city.  It  is  described  as  "A 
city  movement  organizing  the  cooperation  of  all  agencies  which  want  to  do 
things  for  industrial  and  civic  improvement;  a  city  plan  coordinating  the 
proposals  of  all  agencies  which  want  things  done  into  a  programme  which  the 
public  can  understand  and  carry  out;  a  city  calendar  setting  dates  ahead 
when  parts  of  the  programme  can  and  ought  to  be  carried  out." 


Municipal  Functions  635 

pal  utilities  reveals  three  general  modes:  (i)  Private  ownership 
under  pubHc  regulation;  (2)  public  ownership  with  private  opera- 
tion; and  (3)  pubHc  ownership  and  operation. 

Where  municipal  utilities  are  in  private  hands  they  are  operated 
under  franchises  granted  by  some  municipal  or  state  authority.^ 
On  the  whole  there  is  a  marked  tendency  in  the  direction  of 
making  the  grant  of  important  franchises  dependent  upon  popular 
vote.  This  is  the  system  which  prevails  where  the  initiative  and 
referendum  are  in  force.^  There  is  also  a  tendency  to  hmit 
the  term  of  all  franchises,  issued  to  private  companies,  to  short 
periods  of  years,  varying  according  to  the  importance  of  the 
utility.  In  general,  the  term  of  twenty-five  years  seems  to  be 
the  most  popular.  It  has  become  customary,  furthermore,  in 
the  granting  of  franchises,  to  place  the  private  company  under 
some  close  restrictions  as  regards  charges  and  the  character  of 
the  service  rendered;  and  it  is  now  the  common  practice  for  the 
tnunicipahty  to  require  some  kind  of  compensation  either  in 
services,  cash  payment,  or  annual  rental.^  Even  the  most  con- 
servative students  of  municipal  government  are  agreed  that  the 
old  policy  of  non-interference  is  obsolete.^ 

Wherever  public  ownership  is  combined  with  private  opera- 
tion, the  municipaUty  leases  its  plant  to  some  corporation,  and 
stipulates  certain  standards  as  to  services  and  charges.  This 
Ls  quite  common  in  cases  where  the  undertakings  are  so  large  and 
returns  on  the  investment  so  uncertain  that  private  capitaHsts 
are  unwilling  to  finance  the  enterprise  at  all  or  except  under  oner- 
ous conditions.  Examples  of  this  method  of  dealing  with  munic- 
ipal monopoHes  are  afforded  by  the  waterworks  system  of  Den- 
ver and  the  subways  of  Boston  and  New  York. 

The  third  method  of  deahng  with  municipal  utilities  —  pubUc 
ownership  and  operation  —  is  far  more  frequently  employed  in 
Europe  than  in  the  United  States.     If  we  leave  out  of  account  the 

1  Several  of  the  states  have  forbidden  the  state  legislature  to  grant'fran- 
chises  in  cities. 

2  Above,  p.  597. 

^  The  recent  Cleveland  street  railway  settlement  which  limits  the  com- 
pany to  a  net  earning  of  6  per  cent  on  the  capital  and  at  the  same  time 
gives  the  city  strict  control  over  service,  extensions,  and  increase  of  capital 
is  an  interesting  example  of  public  regulation. 

*  Readings,  p.  548. 


636  American  Government  and  Politics 

water  plants  and  the  small  electric-light  plants  owned  and  oper- 
ated by  American  cities,  we  may  say  that  the  principle  of  munici- 
pal ownership  has  secured  no  general  acceptance.  Doubtless 
the  general  view  current  in  the  United  States  is  well  represented 
by  the  report  of  a  commission  on  pubhc  ownership  appointed 
by  the  National  Civic  Federation  in  1907.^  That  commission 
came  to  the  conclusion  that  municipal  ownership  of  public  utiU- 
ties  should  not  be  extended  to  revenue-producing  industries  not 
involving  pubhc  health,  safety,  and  transportation,  or  the  per- 
manent occupation  of  pubhc  streets  or  grounds.  It  is  generally 
held  that  owing  to  the  corruption  and  inefficiency  of  so  many  of 
our  city  governments  no  sort  of  pubhc  business  on  a  large  scale 
can  be  successfully  operated  directly  by  municipal  authorities. 
How  far  this  view  represents  the  mature  judgment  of  people  who 
have  given  the  matter  any  thought  and  how  far  it  is  an  opinion 
advanced  by  the  private  interests  opposed  to  the  extension  of 
municipal  ownership  it  is,  of  course,  difficult  to  determine." 

It  is  certain  that  most  of  the  corruption  in  American  city  gov- 
ernment has  been  connected  with  the  exploitation  of  public 
franchises  by  private  corporations.  It  is  undoubtedly  true,  also, 
that  "pohtics,"  in  the  bad  sense  of  that  word,  is  mixed  up  as  much 
with  private  ownership  as  with  pubhc,  and  the  career  of  some  of 
the  New  York  transit  companies  will  conipare  in  mismanage- 
ment and  dishonesty  with  the  career  of  the  Philadelphia  gas- 
works under  the  ownership  and  operation  of  the  city.^  Indeed, 
it  is  argued  by  advocates  of  municipal  ownership  and  operation 
that  the  danger  of  corruption  is  by  no  means  so  marked  in  con- 
nection with  public  ownership  as  with  private  ownership.'*  They 
hold  that  the  greater  responsibihties  associated  with  public 
ownership  will  attract  a  higher  quality  of  men  to  our  municipal 
governments;  that  in  proportion  as  the  city,  through  pubhc 
owTiership,  touches  directly  the  Hves  of  its  citizens,  popular  in- 

*  Readings,  p.  548. 

2  For  an  excellent  example  of  the  way  in  which  interested  corporations 
may  use  modem  publicity  to  discredit  municipal  ownership,  see  the  Progres- 
sive Age  for  November,  1907  —  an  article  on  "  Mimicipal  Ownership  in  New 
York  City." 

^  See  Bryce,  American  Commonwealth,  Vol.  II,  chap.  Ixxxix,  and  Readings, 
P-  552. 

*  See  Readings,  p.  550. 


Municipal  Functions  637 

terest  in  its  governmen't  and  administration  will  be  increased; 
that  a  higher  standard  of  labor  conditions  may  be  estabHshed; 
and  that  only  public  ownership  and  operation  will  secure  that 
control  necessary  to  make  the  various  municipal  enterprises 
render  adequate  services. 

It  may  be  doubted,  however,  whether  arguments  in  the  ab- 
stract on  this  question  of  municipal  ownership  are  of  any  practi- 
cal value.  Most  opinions  which  we  now  have  rendered  as  to  the 
respective  merits  of  pubUc  and  private  ownership  are  merely  ex 
parte  statements.  It  may  be  said  with  safety  that  in  some  places 
municipal  ownership  and  operation  have  succeeded  remarkably 
well  and  that  in  other  places,  notably  in  Philadelphia,  municipal 
ownership  is  connected  with  corruption  and  inefficiency.  No 
general  conclusion  seems  possible  at  the  present  time  except  that 
municipal  ownership  will  not  succeed  in  any  city  unless  high 
standards  of  civil  service  are  established  and  there  is  a  large  and 
influential  group  or  class  permanently  and  deeply  interested  in 
the  economical  and  efficient  management  of  the  enterprise  in 
question.  Municipal  ownership,  tlierefore,  is  in  itself  not  good 
or  bad;  its  success  depends  upon  the  standards  and  ideals  of  the 
community  in  which  it  is  tried. 


CHAPTER  XXIX 

LOCAL  RURAL  GOVERNMENT  ^ 

The  differences  in  local  institutions  throughout  the  United 
States  have  been  so  often  emphasized  by  writers  on  American 
government  that  it  seems  well  at  the  outset  to  indicate  certain 
fundamental  principles  common  to  them  all.  The  first  of  these 
is  that  our  local  communities  enjoy  large  powers  of  self-govern- 
ment through  elective  officers,  and  in  the  exercise  of  these  powers 
are  only  slightly  subject  to  the  supervision  and  control  of  the 
state  administrative  officers.  In  the  second  place,  the  states, 
with  one  exception,  are  divided  into  counties,^  and  counties  are  in 
turn  divided  into  towns,  townships,  or  districts  of  one  kind  or 
another.  Every  county,  and  generally  speaking  every  subdivi- 
sion of  a  county,  is  a  unit  for  certain  financial,  judicial,  police, 
and  local  improvement  purposes  which  are  usually  carried  out  by 
elective  officers  and  boards.  In  the  third  place,  subject  to  the 
few  general  provisions  in  the  commonwealth  constitution,  the 
county  and  its  subdivisions  are  under  the  absolute  control  of  the 
state  legislature,  which  can  create  and  abohsh  offices,  distribute 
functions  among  the  various  authorities,  and  in  other  ways  regu- 
late by  law  even  to  the  minutest  detail  the  conduct  of  local 
government. 

The  divergences  that  occur  among  the  states  in  local  institu- 
tions may  be  ascribed  to  the  manner  in  which  local  functions  are 
distributed  between  the  authorities  of  the  county  and  of  the  town 
or  township  and  to  the  manner  in  which  the  inhabitants  of  the 
county  subdivisions  participate  in  the  conduct  of  their  local 
matters.  On  this  basis  of  differentiation  our  states  have  been 
classified  into  the  three  famous  groups:  (i)  those  of  the  New 
England  type  in  which  the  town  and  its  open  meeting  overshadow 

^  In  the  preparation  of  this  chapter  extensive  use  has  been  made  of  the 
scholarly  work  by  Professor  Fairlie,  Local  Government  in  Counties,  Towns, 
and  Villages,  to  which  the  student  is  referred  for  further  details. 

*  Louisiana  is  the  only  state  in  which  the  district  is  not  known  as  the 
county.    There  it  is  called  the  parish. 

638 


Local  Rural  Government  639 

in  importance  the  county;  (2)  those  of  the  South  in  which  the 
township  is  absent  or  appears  only  in  the  most  rudimentary  form; 
and  (3)  those  of  the  middle  type,  like  New  York  and  Pennsylvania, 
in  which  the  town,  or  township,  as  it  is  sometimes  called,  has  a 
large  and  important  place,  but  is  subordinate  to  the  county  ad- 
ministration. These  three  types  of  local  government,  which  will 
be  described  in  due  time,  have  been  carried  westward  roughly 
along  parallel  lines  and  have  formed,  with  varying  emphasis, 
the  basis  for  the  development  of  local  institutions  west  of  the 
Alleghanies. 

The  County^ 

The  last  census  reported  2852  counties  in  the  United  States, 
varying  in  size  from  the  county  of  Bristol  in  Rhode  Island,  em- 
bracing twenty-five  square  miles,  to  the  great  county  of  Custer  in 
Montana  covering  more  than  twenty  thousand  square  miles. 
A  majority  of  the  counties,  however,  range  between  300  and  900 
square  miles  in  area.  The  divergences  in  population  are  even 
greater,  for  at  one  end  of  the  scale  we  have  New  York  county, 
the  heart  of  the  metropolis,  with  more  than  two  milUon  inhabit- 
ants, and  at  the  other  end.  Brown  county,  Texas,  with  four  resi- 
dents —  according  to  the  census  of  1900.  Even  within  the  same 
state  there  may  be  the  greatest  divergences  in  area  and  population. 
Kings  county  in  New  York  has  seventy-two  square  miles  and 
St.  Lawrence  county  2880  square  miles;  Hamilton  county  has 
only  5000  inhabitants,  and  Schuyler  about  15,000.  Delaware 
has  three  counties,  Massachusetts  fourteen.  New  York  sixty- 
one,  and  Texas  243.  Every  county  has  a  county  town,  which' 
is  the  seat  of  the  offices  of  administration.  In  every  state  except 
two,  Rhode  Island  and  Georgia,  there  is  a  county  board  ^  in  charge 
of  certain  matters  of  finance  and  administration,  and  every  county 
has  a  group_qf  officers  connected  with  the  administration  of  jus- 
tice, police  control,  finance,  and  miscellaneous  matters.  Beisides 
being  a  unit  for  the  satisfaction  of  purely  local  needs,  the  county 
is  also  a  subdivision  of  the  state  for  the  discharge  of  many  cen- 
tral functions,  especially  in  connection  with  finance  and  elections. 

Let  us  examine  first  the  county  board.  From  the  point  of 
view  of  organization,  county  boards  may  be  divided  into  two 
general  classes:    (i)  the  small  board  of  three  or  more  members 

'  The  Louisiana  parish  also  has  a  board. 


640  American  Government  and  Politics 

elected  at  large  for  the  whole  county  or  from  large  districts,  and 
(2)  the  representative  board  composed  ordinarily  of  one  member 
elected  from  each  township  within  the  county.  The  former  type 
prevails  generally  in  New  England,  the  South,  the  Middle  West, 
and  Pacific  states;  the  latter  type  is  to  be  found  in  New  York, 
New  Jersey,  Michigan,  and  a  few  other  states. 

Each  of  the  two  types  of  county  board,  the  small  board  and 
the  large  representative  body,  has  its  peculiar  advantages.  The 
former  can  readily  meet  oftener,  transacts  business  with  more 
faciUty,  and  can,  with  more  certainty,  bje  held  responsible  for  the 
due  discharge  of  its  legal  duties.  The  tatter  is  more  re|>resenta- 
tive  in  principle,  affords  fewer  opportunities  for  collusion  among 
the  members,  and  partakes  more  of  a  deHberative  character.  In 
point  of  fact,  however,  both  systems  have  been  severely  criticised 
as  wasteful,  inefficient,  and  sometimes  corrupt;  and  several 
attempts  have  been  made  to  institute  other  organs  of  local  gov- 
ernment to  check  and  control  the  county  board.  For  example, 
in  Indiana,  the  legislature  has  superimposed  on  that  board  a 
county  council'  invested  with  the  important  local  financial  func- 
tions.^ 

The  functions  of  the  county  board  generally  fall  into  five 
classes:  the  levy  of  taxes  and  appropriation  of  local  funds,  the 
maintenance  of  roads  and  highways,  the  construction. and,caTe  of 
coimty  buildings,  the  rehef  of  the  poor,  and  thejcontrol  of  elec- 
tions. In  the  distribution  of  these  functions,  however,  there  are 
great  variations  among  the  states.  In  New  Hampshire  and 
Connecticut  the  power  of  taxation  and  appropriation  is  vested  in 
a  county  convention,  composed  of  the  members  of  the  legislature 
from  the  county,  which  meets  every  two  years.  In  Massachu- 
setts, this  financial  power  is  vested  in  the  legislature,  the  county 
commissioners  merely  furnishing  the  estimates.  Indiana,  as 
has  been  indicated,  has  adopted  another  device  for  controlling 
county  finances.  In  New  England  and  some  other  states,  the 
rehef  of  the  poor  is  principally  left  to  the  town,  although  the 
county  is  not  entirely  without  responsibihty  in  this  matter.  In 
New  England,  the  county  board  has  no  functions  relating  to 
elections;  and  in  the  West  and  South,  the  county  commissioners 
frequently  constitute  the  licensing  authority. 

To  offset  the  confusion  liable  to  arise  from  this  attempt  to 
^  Readings,  p.  561. 


Local  Rural  Government  641 

generaKze  with  regard  to  the  county  board,  it  seems  best  to  give 
a  single  concrete  illustration  by  exhibiting  the  organization  and 
powers  of  the  board  in  New  York.  The  board  of  supervisors  is 
composed  of  one  supervisor  from  each  town  in  the  county  and 
one  supervisor  for  each  ward  in  each  city  within  the  county,  ex- 
cepting in  some  counties  wholly  included  within  cities.  The 
members  meet  annually  and  in  special  sessions  at  the  caRpf  the 
clerk,  on  the  written  request  of  a  majority;  and  whenever  re- 
qmred  by  law  for  the  performance  of  some  particular  function. 
A  majority  of  the  board  constitute  a  quorum;  they  elect  a 
chairman;  their  meetings  are  pubHc  and  they  make  rules  gov- 
erning their  procedure.  Penalties  are  imposed  upon  members 
for  the  neglect  of  duty. 

The  general  powers  of  the  board  are  as  follows.  They  have 
the  care  and  custody  of  the  corporate  property  of  the  county; 
they  audit  all  accounts  and  charges  against  the  county,  and  direct 
annually  the  raising  of  money  to  defray  them  in  full;  they  order 
the  levy  of  the  taxes  for  each  town;  they  assess,  levy,  and  col- 
lect any  other  taxes  required  by  the  law  of  the  state;  they  fix 
the  salaries  and  compensation  of  county  treasurers,  district  at- 
torneys, and  superintendents  of  the  poor;  they  erect  county  build- 
ings and  borrow  money  therefor  whenever  necessary;  they  may, 
on  appHcation  of  twenty-five  resident  taxpayers  and  when  satis- 
fied that  it  is  for  the  best  interest  of  the  county,  lay  out,  open, 
alter,  or  discontinue  a  county  highway  or  cause  the  same  to  be 
done,  and  construct,  repair,  or  abandon  a  county  bridge  when 
they  may  deem  the  authority  conferred  upon  the  state  highway 
commissioners  insufiicient;  they  constitute  the  board  of  canvass- 
ers for  elections  in  the  county,  except  in  the  counties  embraced 
in  New  York  City.  In  addition  to  these  important  powers,  the 
board  has  a  multitude  of  minor  duties  which  cannot  be  enumer- 
ated here. 

The  powers  conferred  upon  the  county  board  by  the  state 
constitution  or  by  legislation  are  usually  enumerated  or  at  best 
very  narrowly  confined.  This  results  in  the  necessity  of  going  to 
the  state  legislature  for  innumerable  special  acts  at  every  session; 
it  destroys  "home  rule,"  and  helps  to  introduce  confusion  into 
state  legislative  business.^  The  new  Michigan  constitution  of 
1908  continued  an  old  provision  authorizing  the  legislature  to 
^  See  above,  p.  530. 


642  American  Government  and  Politics 

confer  legislative  powers  on  the  county  boards  of  supervisors,  and 
by  recent  enactment  the  board  has  been  given  power  "  to  pass  such 
laws,  regulations,  and  ordinances  relating  to  purely  county  af- 
fairs as  they  may  see  fit,  but  which  shall  not  be  opposed  to  the 
general  laws  of  the  state  and  shall  not  interfere  with  the  local 
affairs  of  any  township,  incorporated  city,  or  village  within  the 
limits  of  such  county."  Laws  passed  by  the  board  under  this 
act  may  be  vetoed  by  the  governor,  to  whom  they  must  be  sub- 
mitted, but  they  may  be  repassed  over  his  veto  by  a  two-thirds 
vote.^  This  should  have  a  salutary  effect  upon  reducing  the 
pressure  for  special  laws  in  the  Michigan  legislature. 
-  The  county  board  is  always  supplemented  by  a  series  of  pubhc 
officials  var5dng  in  number  and  in  the  distribution  of  powers  from 
state  to  state;  but  the  two  leading  groups  of  such  ofl&ces  —  those 
connected  with  justice  and  poHce  and  with  finance  -y  are  of  course 
always  present,  owing  to  the  fact  that  these  functions,  to  a  greater 
or  less  extent,  everywhere  form  a  part  of  county  administration. 
These  ofiices,  or  at  least  the  duties  attached  to  them,  are  gener- 
ally determined  by  the  state  legislature  under  very  slight  constitu- 
tional control,  and  each  incumbent  is  usually  independent  in  the 
discharge  of  his  duties,  being  subject  only  in  a  few  instances  to 
supervision  by  the  county  board  or  by  the  state  administrative 
authorities.  It  is  the  common  rule  also  to  have  these  offices 
elective,  but  there  are  a  number  of  exceptions,  especially  in  the 
matter  of  judicial  officers  in  the  eastern  and  southern  states. 

The  practice  of  having  a  separate  judge  and  court  for  each 
county  obtains  in  only  about  one-third  of  the  states,  while  some 
other  states  have  separate  courts  for  the  more  populous  counties. 
The  more  common  rule  is  to  group  counties  into  judicial  districts 
and  have  one  judge  go  on  circuit  from  county  to  county,  holding 
stated  sessions  of  court.^  In  nearly  three-fourths  of  the  states  all 
judges,  district  and  county,  are  selected  by  popular  vote  for  vary- 
ing terms  —  often  six  to  twelve  years.  In  other  states  they  are 
selected  by  the  governor  in  conjunction  with  a  council,  the  senate, 
or,  as  in  Connecticut,  the  entire  legislature.  In  Rhode  Island, 
Vermont,  Virginia^  South  Carohna,  Georgia,  they  are  chosen  by 
the  legislature.  Sometimes  there  is  associated  with  the  county 
judge  a  special  officer,  usually  known  as  the  probate  judge,  who 

1  Professor  Fairlie,  in  the  American  Political  Science  Review,  for  February, 
1910,  p.  122.  ^See  above,  p.  548. 


Local  Rural  Government  643 

is  charged  with  the  settlement  of  estates.  In  New  York  there  is 
a  county  judge  elected  for  a  term  of  six  years/  and  in  a  majority 
of  counties  there  is  a  surrogate  or  probate  judge,  also  elected  for 
six  years. - 

The  jurisdiction  of  the  county  court,  that  is,  the  range  of  matters 
wliich  may  come  before  county  court  judges,  of  course,  varies 
greatly  from  state  to  state.  In  a  few  states,  the  county  court  has 
no  judicial  functions  at  all,  but  is  merely  an  administrative  organ; 
in  two  states,  Kentucky  and  Tennessee,  it  possesses  both  judicial 
and  administrative  functions;  and  in  some  others  the  duties  of  a 
county  court  are  confined  to  probate  business.  The  county  court 
of  New  York  has  jurisdiction  over  all  civil  cases  involving  not 
more  than  $2000,  and  over  all  criminal  cases,  with  the  single 
exception  of  murder. 

Next  in  importance  to  the  judicial  officers  of  the  county  is  the 
prosecuting  attorney,  known  in  New^York  as  the  distnct^tomey 
and  in  some  other  states  as  the  county  attorney.^  He  is  generally 
an  elective  officer  and  is  charged  with  the  institution  and  conduct 
of  criminaljgrosecutions  and  with  representing  the  county  in  civil 
suits.  He  usually  has  the  power  of  appointing  assistant  prosecut- 
ing attorneys  for  the  various  localities  within  the  county.  Some- 
times he  derives  his  salary  from  fees  —  a  device  which  furnishes  an 
incentive  to  activity;  but  it  is  discarded  by  many  states  in  favor 
of  a  fixed  salary  because  it  may  encourage  useless  prosecutions. 
In  New  York  the  district  attorney  for  each  county,  with  a  few 
exceptions,  is  elected  for  a  term  of  three  years;  and  it  is  his 
duty  to  conduct  all  prosecutions  for  crimes  and  offences  com- 
mitted within  his  county,  except  when  the  trial  of  an  indictment  is 
removed  from  his  jurisdiction,  in  which  case  he  must  assist  the 
neighboring  district  attorney  in  the  trial  of  the  case  if  requested. 

The  chief  business  of  the  prosecuting  attorney  is,  of  course,  the 
enforcement  of  the  law  against  criminals  of  every  kind  —  from 
the  petty  thief  to  the  murderer  or  the  defaulting  or  dishonest 
pubhc  officer.     Clearly,  therefore,  the  good  order  of  the  commu- 

1  There  are  exceptions  for  counties  containing,  or  embraced  by,  cities. 

-  There  is  always  attached  to  the  county  court  a  clerk  who  keeps  the 
judicial  records  and  sometimes  has  miscellaneous  functions  in  addition;  see 
above,  p.  549. 

'  This  latter  term  is  applied  in  some  states  (including  New  York)  to  an 
attorney  appointed  to  represent  the  poor  in  courts. 


644  American  Government  and  Politics 

nity  and  the  efficiency  of  the  government  depend  in  a  large  meas- 
ure upon  the  character  of  the  prosecuting  attorney;  and  it  is 
small  wonder  that  heated  political  contests  are  sometimes  waged 
in  the  selection  of  the  man  to  fill  this  position.  There  is  nothing 
so  important  to  a  corrupt  county  or  city  political  machine  as  the 
office  of  the  prosecuting  attorney,  for  it  is  practically  within  his 
power  to  decide  whether  corruption  and  malfeasance  shall  exist 
in  the  various  departments  or  not.^  Effective  work  as  prosecutor 
has  brought  many  men  into  great  prominence,  especially  in  recent 
years  when  municipal  scandals  have  been  so  widespread.  Mr. 
Deneen's  services  as  prosecutor  in  Chicago  opened  the  way  to  the 
office  of  governor  for  him,  and  Mr.  Folk's  vigorous  search  for 
criminals  in  St.  Louis  helped  to  make  him  governor  of  that  state. 
The  dramatic  career  of  Mr.  Heney  in  San  Francisco  is  so  recent  a 
matter  that  it  need  not  be  mentioned  here. 

The  prosecuting  attorney,  however,  does  not  have  sole  control 
over  the  institution  of  criminal  proceedings,  for  in  m6st'Stat€s1ti5 
the  grand  jury  that  takes  the  preliminary  steps  in  hearing  evi- 
dence and  bringing  the  indictments.  The  prosecutor  has  no 
legal  power  to  force  or  prevent  action  on  the  part  of  the  grand 
jury;  but,  as  a  matter  of  common  practice,  he  determines  what 
cases  shall  come  before  the  grand  jury,  and  his  advice  as  to  the 
proper  line  of  action  is  generally  taken. 

The  recognition  of  this  fact  and  the  discovery  that  the  grand 
jury  is  a  slow  and  unwieldy  instrument  for  prosecution  have  led 
several  states  to  abandon  it  altogether  for  ordinary  cases  and  to 
authorize  the  institution  of  criminal  trials  on  "information" 
presented  by  the  prosecutor.  There  are,  of  course,  grave  dangers 
in  substituting  the  will  of  a  single  official  for  the  deliberate  judg- 
ment of  a  group  of  citizens,  and  the  constitution  of  Oklahoma, 
while  permitting  prosecution  by  information,  provides  that  "no 
person  shall  be  prosecuted  for  a  felony  by  information  without 
having  had  a  preliminary  examination  before  an  examining 
magistrate,  or  having  waived  such  preliminary  examination."  - 
The  restriction  of  the  use  of  the  grand  jury,  furthermore,  in- 
creases enormously  the  power  of  the  prosecutor,  happily  if  he 
uses  it  for  good,  disastrously  if  he  is  associated  with  the  criminal 
elements. 

^  See  Goodnow,  Principles  of  the  Administrative  Law  of  the  United  States, 
P-  416.  ^  2  Readings,  p.  87. 


Local  Rural  Government  645 

The  executive  officer  of  the  county  is  the  sheriff,  who  is  elected 
by  popular  vote  in  every  state  except  Rhode  Island,  where  he  is 
chosen  by  the  legislature.  The  sheriff  always  has  power  to 
appoint  one  or  more  deputy  sheriffs.  The  te^m  is  usually  two 
years,  but  in  some  states,  including  New  York,^  it  is  three  years, 
and  in  a  few  it  extends  to  four  years.  The  sheriff  is  paid  either  a 
fixed  salary  or  by  fees  or  by  a  combination  of  both  ;  and  in  New 
York  county  the  income  secured  by  the  sheriff  in  a  legitimate 
way  sometimes  amounts  to  $75,000  or  more.  The  sheriff  is  cus- 
todian of  the  county  jail;  he  is  the  county  hangman;  he  summons 
witnesses,  arrests  indicted  persons,  sells  the  property  of  private 
persons  for  taxes  or  debt  under  judicial  order,  and  executes  the 
processes  of  the  court. 

The  sheriff  is  also  conservator  of  the  peace  in  the  county,  that 
is,  he  may  "upon  view,  without  writ  or  process,  commit  to  prison 
all  persons  who  break  the  peace  or  attempt  to  break  it;  he  may 
award  process  of  the  peace  and  bind  any  one  in  recognizance  to 
keep  it.  He  is  bound,  ex  officioy  to  pursue  and  take  all  traitors, 
murderers,  felons,  and  other  misdoers  and  commit  them  to  jail 
for  safe  custody.  For  this  purpose  he  may  command  the  posse 
comitatus,  or  power  of  the  county;  and  his  summons  every  one 
over  the  age  of  fifteen  years  is  bound  to  obey."  ^  This  power  is  of 
great  significance  in  time  of  peace  and  of  special  importance  in 
the  case  of  disorders. 

The  sheriff  is  to  a  large  extent  the  guardian  of  life  and  property. 
The  zeal  or  laxity  with  which  he  takes  precautionary  measures 
will  often  determine  the  seriousness  of  a  local  disturbance;  and 
there  are  many  instances  of  sheriffs  allowing  their  fears  or  sym- 
pathies to  outweigh  their  strict  obHgations  to  execute  the  law. 
Indeed,  in  many  of  the  unsettled  communities,  the  contest  over 
the  election  of  sheriffs  is  waged  with  great  vigor  on  account  of  its 
relation  to  the  suppression  of  disorder.  In^serious  disturbances, 
however,  the  govjernor  of  the  state  may  take  the  police  control 
temporarily  out  of  the  hands  of  the  sheriff  by  declaring  martial 
law  and  using  state  troops.'  He  may  do  this,  of  course,  at  the 
request  ol  a  sheriff  unable  to  maintain  order  with  the  ordinary 
resources  at  his  command. 

*  Exceptions  for  certain  populous  counties. 

'  South  V.  Maryland,  18  Howard,  396,  quoted  in  Fairlie,  op.  cit.,  p.  109. 

'  See  Readings,  p.  449. 


646  American  Government  and  Politics 

Closely  associated  with  the  office  of  sherifif  is  that  of  the  cor^ 
oner,  an  office  not  quite  so  ancient,  but  nevertheless  with  a  long 
and  interesting  history.  There  are  usually  two  or  more  coroners 
in  a  county,  and,  except  in  a  few  eastern  and  southern  states, 
they  are  elected  by  popular  vote.  The  New  York  law  provides 
that  there  shall  be  four  in  each  county  having  100,000  popula- 
tion or  more,  and  not  more  than  four  in  other  counties  as  the 
board  of  supervisors  may  determine;  they  are  elected  for  a  term 
of  three  years.^ 

It  is  the  duty  of  the  coroner  to  view  the  body  of  any  person 
murdered,  or  killed  by  accident,  or  in  any  other  manner  involving 
suspicion  of  crime.  The  inquest  is  made  by  a  jury,  generally 
of  six,  empanelled  by  the  coroner;  witnesses  are  summoned;  all 
facts  relating  to  the  death  of  the  person  which  can  be  ascertained 
are  recorded;  and  at  the  conclusion  of  the  inquest  the  jury  re- 
turns a  verdict  to  the  effect  that  the  deceased  met  his  death  in 
some  particular  manner  and,  when  foul  play  is  unearthed,  the 
offender  or  offenders  may  be  named. 

In  New  York  the  coroner  may  employ  two  competent  surgeons 
to  make  post  mortem  examinations  and  to  testify  to  the  result 
of  the  same,  and  it  is  the  common  practice  in  all  states  to  call 
some  medical  authority  to  give  testimony  at  an  inquest.  .  Owing 
to  the  value  of  such  evidence  and  the  crude  and  ignorant  methods 
often  accompanying  coroners'  inquests,  Massachusetts  has  pro- 
vided for  the  appointment  of  expert  medical  examiners  to  give 
special  attention  to  these  important  preliminary  investigations. 
The  coroner's  verdict  does  not  in  any  case,  however,  prevent 
independent  action  by  the  county  prosecutor  or  grand  jury. 

In  addition  to  the  judicial  and  police  officials  of  the  county, 
there  is  a  second  important  group,  which  may  be  designated  as 
the  financial  officers.  They  are  generally  elective.  First  among 
these  is  the  treasurer,^  who  is  to  be  found  in  every  state  except 
Rhode  Island.  His  duties  are  primarily  fiscal  in  character;  he 
collects  the  taxes  laid  in  the  county,  but  sometimes  he  is  assisted 
in  this  by  special  collectors;  and  he  transmits  to  the  central  au- 

^  Exceptions  for  certain  populous  counties. 

^  In  Connecticut,  Vermont,  New  Jersey,  Kentucky,  and  Louisiana  treas- 
urers are  appointed  by  county  boards  and  in  South  Carolina  by  the  governor. 
Fairlie,  op.  cit.,  p.  122.  In  New  York  the  term  of  the  treasurer  is  three 
years,  except  in  certain  populous  counties. 


Local  Rural  Government  647 

thorities  the  portion  of  the  local  revenues  which  goes  to  the  state. 
He  is  the  guardian  of  the  county  funds,  and  in  many  states  he 
may  select  under  the  terms  of  the  law  the  banks  in  which  to  de- 
posit the  money  under  his  control.  In  the  exercise  of  this  power 
he  often  derives  a  large  personal  income,  but  some  states  have 
now  required  the  officer  to  turn  into  the  county  treasury  all 
interest  accruing  from  deposits  of  public  money.  The  law  of 
New  York  orders  the  treasurer,  if  not  otherwise  directed,  to 
designate  in  writing  the  banks  in  which  county  funds  are  to  be 
deposited  and  to  agree  upon  the  rate  of  interest,  which  is  to 
be  credited  to  the  account  of  the  county.  Of  course,  this  leaves 
opportunity  for  favoritism,  which  will  be  advantageous  to  the 
treasurer,  and  there  has  been  more  than  one  case  of  private  gain 
at  public  expense. 

About  one-third  of  the  states,  principally  in  the  North  Central 
group,  have  county  auditors  whose  business  it  is  to  go  over  the 
accounts  of  all  the  officers  of  the  county,  to  prepare  a  periodical 
statement  of  the  county  finances,  and  to  issue  warrants  on  the 
treasurer. 

In  New  York  the  legislature  has  not  yet  seen  fit  to  create  the 
office  of  auditor,  except  for  one  county,  Erie,  in  which  the  city 
of  Buffalo  is  located.^  The  accounts  for  the  four  counties  em- 
braced within  the  area  of  Greater  New  York  are  audited  by  the 
comptroller  of  the  city.  In  the  other  counties  of  the  state  the 
auditing  has  not  been  centraHzed;  the  board  of  supervisors 
audits  and  allows  all  accounts,  but  nearly  all  of  the  routine  work 
is  done  by  the  clerk  of  the  board,  who  is  for  many  practical 
purposes  the  county  auditor.  An  additional  element  of  control 
is  furnished  by  the  provision  requiring  the  treasurer  to  make  a 
detailed  annual  statement  to  the  board,  but  this  system  does 
not  furnish  the  general  supervision  and  scrutiny  desirable, 
especially  in  wealthy  and  populous  counties. 

In  a  number  of  states,  especially  those  in  which  the  township' 
is  only  sUghtly  developed,  notably  in  the  South,  there  is  a 
coimty  assessor  who  is  usually  elected.  It  is  his  duty  to  make 
out  the  roll  of  all  the  taxpayers  residing  in  the  county  and  the 
value  of  property  assessed  against  each  person.  Quite  generally 
the  taxpayers  Ust  their  own  property  for  the  information  of  the 
assessor,  but,  of  course,  he  may  alter  each  valuation  as  he  may  see 
1 A  law  of  1910  authorizes  their  appointment. 


648  American  Government  and  Politics 

fit.  Associated  with  the  assessor  there  is  sometimes  a  board 
of  equahzation,  whose  duty  it  is  to  pass  upon  the  assessments 
of  the  entire  county  with  a  view  to  correcting  inequalities,  and  to 
hear  appeals  from  taxpayers  protesting  against  the  valuation 
assigned  to  their  property.  In  New  York,  this  work  of  equahza- 
tion is  done  by  the  board  of  supervisors,  who  may,  however,  by 
majority  vote,  appoint  three  persons  to  be  commissioners  of 
equalization  of  the  county. 

In  addition  to  the  financial,  judicial,  and  police  groups  of  county 
officials,  there  are  a  number  of  officers  connected  with  county 
administration.  In  almost  one-half  of  the  states  there  is  a 
county  clerk,  who  sometimes  combines  duties  connected  with 
the  county  court  with  entirely  separate  ministerial  duties,  such 
as  keeping  records  of  deeds  and  mortgages,  or  preparing  ballots 
for  elections.  The  county  clerk  in  New  York  is  elected  for  a  term 
of  three  years  ;^  he  serves  as  the  custodian  of  election  records, 
in  all  except  the  most  populous  counties,  which  have  special 
authorities  for  this  purpose;  and  he  generally  prepares  ballots 
for  primary  and  regular  elections. 

The  custody  of  the  records  of  land  is  a  county  function  in  all 
the  states  except  Connecticut  and  Rhode  Island,  where  it  is  vested 
in  the  town  clerk.  In  about  half  the  states,  the  county  has 
a  special  officer  in  charge  of  land  records,  known  as  a  recorder  or 
the  register  of  deeds,  who  keeps  a  record  of  all  titles  to  land  within 
the  county  and  of  all  mortgages,  loans,  and  other  instruments 
which  affect  such. titles. 

Ever>^here,  except  in  New  England,  certain  educational  func- 
tions are  made  county  matters;  and  in  a  number  of  the  southern 
states  the  management  of  schools  is  entirely  in  the  hands  of  county 
authorities  composed  of  boards  and  superintendents.  In  states 
where  education  is  largely  a  township  matter,  as,  for  example, 
in  Indiana,  there  is  a  county  superintendent  of  education  who 
has  general  supervisory  powers  over  the  trustees  or  directors  of 
local  school  districts.  In  New  York  there  is  a  school  commis- 
sioner elected  in  each  school  commissioner  district,  of  which 
some  counties  have  two  or  more;  in  cities,  however,  there  are 
special  boards.^ 

*  In  rural  counties;  sjjecial  provisions  are  made  for  large  cities. 

^  Among  the  minor  county  officers  may  be  included  the  surveyor,  to  be 
found  in  nearly  all  the  states  except  the  North  Atlantic  group,  the  superin- 
tendent of  the  coimty  poor,  and  the  health  commissioners. 


Local  Rural  Government  649 


Town  and  Township  Government 

On  the  basis  for  classifying  local  governments  laid  down  at 
the  opening  of  this  chapter  —  that  of  the  organization  and  func- 
tions of  the  subdivisions  of  the  county — the  New  England  states 
stand  in  a  group  by  themselves.  In  that  section  of  the  Union, 
every  county  is  divided  into  towns,  or,  to  use  the  word  in  a  west- 
ern sense,  townships.  Many  diverting  attempts  have  been  made 
to  trace  the  origin  of  these  rural  hamlets  to  that  "great  cradle  of 
liberty,  the  forests  of  Germany,"  and  as  a  matter  of  fact  they 
do  have  a  very  long  and  interesting  history.  They  have  stood 
practically  unchanged,  especially  in  the  more  sparsely  settled 
districts,  in  their  form  of  government  amid  the  poHtical  revolu- 
tions of  the  nineteenth  century.^  It  is  customary  to  call  them 
pure  democracies  because  they  are  governed  by  assemblies  of 
all  the  voters  in  open  town  meetings,  and  possess  most  of  the 
important  powers  which  are  elsewhere  vested  in  county  officials. 
Yet  it  is  difficult  to  regard  as  democratic  a  system  which  is  the 
basis  for  abuses  in  representation  in  the  state  legislature  almost 
as  gross  as  those  swept  away  in  England  by  the  first  great  re- 
form bill.^ 

The  New  England  towns  are  very  irregular  in  shape,  owing  to 
their  having  been  originally  settlements  laid  out  roughly  before 
an  official  survey  was  made.  Generally  speaking,  they  vary 
in  size  from  twenty  to  forty  square  miles,  although  the  western 
rectangular  township  containing  six  square  miles  is  found  in 
the  northern  part  of  Maine.  The  town  is  usually  a  rural  region 
containing  one  or  more  "villages,"  varying  in  size  from  very  small 
hamlets  to  settlements  containing  three  or  four  thousand  in-, 
habitants.  The  more  thickly  populated  urban  centres  are  usually 
organized  as  city  corporations  distinct  from  the  town,  but  this 
is  not  always  the  case.  The  town  of  Brookline,  Massachusetts, 
between  Boston  and  Newton,  has  a  population  of  over  20,000  and 
yet  retains  its  primitive  town  government.  Even  New  Haven 
and  Hartford,  Connecticut,  have  continued  the  town  organization 
separate  from  the  city  government.  The  feature  of  the  system 
which  is  most  striking  to  the  observer  from  the  middle  West  is 

*  Compare  the  extracts  on  p.  11,  and  on  p.  556  of  the  Readings, 
2  See  above,  p.  521. 


650  American  Government  and  Politics 

the  combination  of  rural  with  municipal  government;  forTiT 
most  instances  considerable  villages  and  even  small  cities,  contain- 
ing a  thousand  or  more  inhabitants,  are  not  separated  from  the 
surrounding  agricultural  district,  but  the  whole  of  the  "town- 
ship" is  governed  by  one  meeting  of  all  the  electors,  rural  and 
urban.  _ 

The  government  of  the  town  is  vested  in  a  town-meeting 
composed  of  all  the  voters  and  held  annually  ahd~"on  special 
occasions.  The  meeting  commonly  assembles  in  the  town  hall 
and  seems  to  be  attended  by  a  considerable  proportion  ^TThe 
voters,  especially  in  the  rural  regions.  At  the  town -meeting 
the  selectmen,  or  executive  committee,  the  town  clerk,  assessor, 
treasurer,  constable,  and  other  officers  are  chosen  by  secret 
ballot,  and  matters  relating  to  appropriations,  streets,  schools, 
and  other  local  functions  are  discussed  and  determined.  In 
rural  districts  where  primitive  conditions  have  been  undisturbed 
by  the  rise  of  the  factory  system  or  by  the  influx  of  immigrants, 
and  where  every  one  knows  everybody's  business,  the  town-meet- 
ing preserves  much  of  its  ancient  vitality  and  interest,  but  to 
a  considerable  degree  the  business  of  the  meeting  is  determined 
in  advance  by  a  caucus  of  the  adepts  in  rural  politics.^  It  is 
only  when  there  is  some  matter  of  special  importance,  Hke  the 
laying  out  of  an  important  street  or  the  erection  of  a  new  school! 
building  or  waterworks,  that  the  town-meeting  rises  to  the^ 
dignity  of  a  deliberative  assembly. 

The  administrative  work  of  the  town  is  done  by  a  group  of 
officers  elected  for  terms  of  one  or  more  years  at  the  town-meet- 
ing. The  chief  executive  officers  of  the  town  are  the  selectmen, 
varying  in  number  from  three  to  nine.  Their  emoluments  and 
the  character  of  their  duties  are  largely  determined  by  the  size 
of  the  town.  They  ma^  execute  the  special  orders  of  the  meeting, 
lay  out  highways,  draw  warrants  on  the  town  treasury,  act  as 
assessors,  health  officers,  and  election  clerks,  and  grant  Hcenses. 
The  town  clerk  is  an  important  and  often  an  interesting  character, 
for  his  knowledge  of  local  matters  and  family  histories  is  some- 
times stupendous.  He  issues  marriage  licenses,  serves  as  a 
registrar  of  marriages,  births,  deaths,  records  the  proceedings 
of  the  town  meetings,  and  in  Connecticut  and  Rhode  Island  is 
a  recorder  of  deeds,  mortgages,  and  other  documents  relating 
^  See  Readings,  p.  12,  for  the  Boston  caucus  in  colonial  times. 


Local  Rural  Government  651 

to  land  titles.  The  funds  of  the  town  are  guarded  by  a  treasurer, 
and  sometimes  there  is  an  auditor  to  supervise  all  accounts. 
The  peace  of  the  town  is  in  the  keeping  of  the  constables,  who 
often  have  other  duties,  such  as  the  serving  of  writs  and  the 
collection  of  taxes.  Except  in  Massachusetts  and  Maine, 
where  they  are  appointed,  justices  of  the  peace  are  elected  at 
the  town  meeting.  There  are  in  addition  numerous  other  minor 
officers,  such  as  poor  guardians,  pound-keepers,  library  trustees, 
and  fence-viewers,  sometimes  elected,  and  sometimes  appointed 
by  the  selectmen. 

In  a  great  group  of  northern  and  central  states  the  town,  or 
township  as  it  is  often  called,  has  a  position  of  importance  in  the 
county;  but  there  is  scarcely  anything  of  the  feeling  of  intense 
locaHsm.  which  has  made  the  town  such  a  vital,  part  of  the  New 
England  system.  In  New  York,  New  Jersey,  Michigan,  Illinois, 
Wisconsin,  Minnesota,  Nebraska,  North  and  South  Dakota, 
for  example,  the  town-meeting  with  considerable  variations  has 
been  adopted,  but  its  functions  are  by  no  means  so  numerous, 
and  with  few  exceptions  the  voters  do  not  take  the  same  lively 
interest  in  its  proceedings.  In  Pennsylvania,  Ohio,  Indiana, 
Iowa,  Kansas  and  Missouri  there  is  no  township  assembly  at  all, 
the  local  business  being  transacted  by  elective  officers. 

This  decline  or  disappearance  of  the  town-meeting  is  principally 
due  to  the  fact  that  in  most  cases  the  township  is  an  artificial 
unit  laid  out  by  the  surveyor,  not  a  settlement  of  neighbors 
and  friends  such  as  we  find  in  New  England.  In  the  middle 
western  states,  the  county  organization  came  first,  when  the 
regions  were  only  sparsely  settled,  and  it  has  retained  most  of  the 
functions  assigned  to  it  in  the  beginning..  The  western  states, 
furthermore,  were  settled  by  immigrants  from  all  parts  of  the 
East  and  from  Europe,  and  the  conditions  were  wanting  for  that 
spontaneous  cooperation  which  naturally  arises  among  men 
closely  associated  in  long  historical  traditions.  It  must  be  re- 
membered also  that  in  this  group  of  states  the  more  populous- 
urban  centres  are  cut  off  from  the  rural  regions  by  special  village 
or  city  organization,  thus  leaving  only  the  scattered  farmers  to 
conduct  their  rural  affairs  by  themselves. 

In  most  of  the  states  which  have  estabUshed  the  town-meeting 
the  authority  of  that  body  is  by  no  means  so  great  as  in  New 
England,  although  in  New  York  it  theoretically  enjoys  sub- 


652  American  Government  and  Politics 

stantial  local  powers.  In  that  state  the  meetings  are  held  bien- 
nially/ usually  on  the  general  election  day  in  November  and 
at  other  times  on  special  call  for  particular  purposes.  The  town 
assembly  elects  at  its  biennial  meeting  one  supervisor,  one  clerk, 
the  justices  of  the  peace,  the  assessors,  one  collector,  one  or 
two  overseers  of  the  poor,  two  or  three  commissioners  of  the 
highways,  and  not  more  than  five  constables.  The  meeting 
may  also  make  provision  for  abating  nuisances,  destroying 
noxious  weeds,  establishing  "pounds,"  and  caring  for  town 
property,  and  it  may  vote  money  for  town  purposes;  but  an  elector 
of  a  town  cannot  vote  upon  any  proposition  for  the  raising  or 
appropriation  of  money  or  incurring  any  town  liabiUty  unless 
he  or  his  wife  is  the  owner  of  property  in  the  town  assessed  upon 
the  tax  roll. 

As  a  matter  of  practice,  however,  the  town-meeting  of  New 
York  in  a  large  number  of  cases  is  merely  an  election,  the  govern- 
ment of  the  town  being  conducted  by  the  town  board,  consisting 
of  the  supervisor,  town  clerk,  and  the  justices  of  the  peace.  The 
board  audits  accounts  and  allows  claims  and  demands  against  the 
town.  The  general  statutes  of  the  state  relating  to  town  govern- 
ment cover  about  one  hundred  and  fifty  closely  printed  pages 
and  go  into  such  detail  that  they  leave  no  deliberative  functions 
of  any  importance.  Financial  function^  connected  with  the 
establishment  of  sewers,  waterworks,  and  lighting  plants  are 
exercised  by  the  town  board,  acting  in  some  instances  on  petition 
of  the  taxpayers  and  in  others  on  a  referendum  to  the  voters. 
The  direction  of  the  raising  of  money  to  meet  town  charges, 
however,  is  vested  in  the  county  board  of  supervisors. 

This  decHne  of  the. town-meeting  is  to  be  found  among  all 
those  states  which  have  adopted  the  system.  As  the  townships 
grow  more  populous,  the  local  duties  to  be  performed  become 
more  complex  and  the  state  legislation  controlling  the  details 
of  local  government  increases  in  bulk.  It  is  inevitable,  there- 
fore, that  the  voters  should  come  to  rely  more  and  more  on 
boards  and  officers  devoting  their  time  to  particular  duties. 

In  those  states  which  do  not  have  township  meetings  the  local 
functions  are  vested  in  elective  officers,  such  as  trustees,  clerks, 
assessors,  treasurers,  justices  of  the  peace,  and  constables.     These 

^  In  a  number  of  towns  the  general  meeting  is  abandoned  altogether  and 
the  voters  assemble  in  election  districts  to  choose  town  officers. 


Local  Rural  Government  653 

officers  are  charged  with  certain  definite  duties  by  statute,  and 
there  is  no  occasion  for  by-laws  and  debate.  In  Indiana,  for 
example,  the  most  important  officer  is  the  trustee,  who  prepares 
the  township  budget,  supervises  the  common  schools  in  rural 
districts,  and,  generally  speaking,  occupies  the  place  of  the  town 
board  in  New  York  or  the  selectmen  in  New  England.  How- 
ever, an  attempt  has  been  recently  made  in  that  state  to  estab- 
Hsh  a  larger  popular  control  over  the  trustee  by  the  creation 
of  an  elective  board  of  freeholders  to  supervise  his  financial 
activities.^ 

The  subdivisions  of  the  county  in  the  South  and  Far  West 
need  not  detain  us  long,  for  they  are  generally  of  sHght  impor- 
tance historically  or  practically,  and  attempts  to  introduce  the 
township  system  of  the  North  and  East  have  not  been  at  all 
successful.^  In  some  of  the  southern  states  the  county  sub- 
divisions are  known  as  magisterial  districts,  in  others  as  election 
districts  or  precincts.  These  divisions  are  quite  frequently 
used  as  the  units  for  electing  justices  of  the  peace,  constables, 
and  members  of  the  county  board  or  for  school  administration. 
The  voting  of  appropriations  and  general  functions  of  adminis- 
tration vested  in  the  New  England  town-meeting  are  in  the  South 
and  West  vested  in  the  county  board.  The  Virginia  county, 
for  example,  is  divided  into  magisterial  districts,  in  each  of  which 
are  elected  a  supervisor  who  serves  on  the  county  board,  three 
justices  of  the  peace,  a  constable,  and  a  poor-law  officer. 

Towns  and  Villages 

In  all  of  the  states  outside  of  New  England,  it  is  the  common 
practice  to  separate  the  more  thickly  settled  districts  from  the 
towns  and  townships  and  to  give  them  a  special  legal  position  and 
form  of  government  of  their  own.  This  is  done  in  a  few  cases 
even  in  New  England.  These  small  centres  of  population  are 
generally  known  as  villages,  boroughs,  or  incorporated  towns. 

Most  of  the  states  have  a  general  law  providing  the  conditions 
under  which  the  more  populous  settlements  may  become  inde- 
pendent and  self-governing  units,  and  in  some  instances  they 
are  incorporated  by  special  act.  In  New  York,  for  example,  any 
territory  not  exceeding  one  square  mile  or  an  entire  town  contain- 

1  See  Readings,  p.  560.  2  gee  Fairlie,  op.  cit. ,  p.  49. 


654  American  Government  and  Politics 

ing  a  population  of  at  least  two  hundred  may  be  incorporated, 
on  petition  of  twenty-five  adult  freeholders  filed  with  the  town 
supervisor  and  approved  by  the  vote  of  the  quahfied  electors.^ 
The  New  York  village  has  a  president,  not  less  than  two  trustees, 
a  treasurer,  a  clerk,  and  a  street  commissioner,  a  board  of  health, 
and  in  some  cases  a  poHce  justice  and  other  officers.  The  presi- 
dent and  trustees  are  always  elected  by  the  voters  of  the  village. 
The  board  of  trustees  is  the  legislative  body  and  has  general 
powers  over  the  finances,  pubHc  buildings,  pavements,  streets, 
fire  protection,  drains,  water  supply,  as  well  as  considerable  ordi- 
nance power  relating  to  peace  and  good  order,  amusements, 
parades,  fast  driving,  improper  noises,  vulgar  language  and  con- 
duct, maHcious  mischief,  railroad  crossings,  and  miscellaneous 
matters.  This  process  of  incorporation  and  this  form  of  govern- 
ment, with  minor  modifications,  are  quite  generally  followed  in 
the  other  states. 

Centralization  of  Administration 

Local  autonomy,  or  exemption  of  communities  from  inter- 
ference on  the  part  of  central  authorities  was  one  of  the  shib- 
boleths of  a  certain  school  of  publicists  in  the  nineteenth  century. 
It  originated  in  France  and  England,  where  the  rising  bourgeoisie 
found  the  centralized  monarchical  institutions,  principally  in 
the  hands  of  the  landed  classes,  particularly  irksome  and  undemo- 
cratic. It  was  heartily  approved  in  the  United  States,  where 
economic  conditions,  especially  before  the  industrial  revolution, 
favored  a  highly  developed  locahsm,  and  it  hardened  into  a  dogma 
to  the  effect  that  interference  with  local  institutions  was  a  species 
of  original  sin  to  be  fought  on  principle  and  on  all  occasions. 
Under  the  circumstances,  undoubtedly,  this  dogma  had  its  justi- 
fication, but  circumstances  have  changed  since  1850.  Affairs 
that  were  once  of  purely  local  concern  have  become  of  state-wide 
and  even  national  importance.  It  does  not  matter  much  to 
neighboring  counties  whether  any  particular  county  keeps  the 
weeds  cut  along  the  roadside  ^  or  allows  the  pound  fences  to  fall 
into  decay,  but  in  these  days  of  swift  and  constant  intercommuni- 

^  There  are,  in  New  York,  some  rather  large  villages  of  more  than  5000 
inhabitants, 

'  Even  this  is  scarcely  true,  for  the  spread  of  weeds  is  not  limited  to 
county  lines. 


Local  Rural  Government  655 

cation  it  does  matter  whether  the  county  safeguards  its  inhabi- 
tants against  contagious  diseases,  assesses  its  property  for  state 
taxation  fairly,  keeps  its  highways  in  order,  allows  the  children 
to  grow  up  in  ignorance,  or  permits  manufactories  to  pollute  the 
streams. 

As  a  result  of  increasing  state-wide  interests,  there  has  come 
inevitably  a  demand  for  more  state  supervision  over  local  insti- 
tutions. We  now  have  state  boards  of  health  with  large  powers 
over  local  sanitary  arrangements,  food  and  dairy  products,  water 
suppUes,  and  other  matters  affecting  the  health  of  the  state  gen- 
erally. We  have  state  factory  and  mining  inspectors,  railway 
commissions,  highway  boards,  charity  and  correctional  boards 
and  officers,  tax  supervisors,  excise  commissioners,  and  educa- 
tional officials.^  Only  recently  Ohio  has  sought  to  standardize 
the  whole  system  of  local  finances  and  to  secure  efficiency  and 
honesty  in  local  financial  administration  by  instituting  a  state 
bureau  of  inspection.^  State  legislatures  are  more  and  more 
subjecting  local  authorities  to  uniform  standards  in  the  matter 
of  education,  sanitation,  highways,  and  finance.  Consequently, 
through  both  legislative  and  executive  centralization,  local  au- 
thorities are  coming  to  assume  almost  purely  administrative  posi- 
tions, as  the  subordinate  authorities,  carrying  out  a  state-wide 
will  on  all  matters  of  fundamental  importance.  The  result  has 
been  good  —  a  steady  and  persistent  elevation  of  the  standards 
of  civilization  throughout  our  states.     • 

^  See  above,  p.  501.  2  ggg  Readings,  p.  565;  below,  p.  713. 


CHAPTER  XXX 

STATE  AND  LOCAL  POLITICS 

All  that  has  been  said  above  about  the  position  of  the  political 
party  as  the  controUing  power  in  the  American  national  govern- 
ment ^  applies  with  equal  force  to  state,  local,  and  municipal 
governments.  It  is  through  the  party  that  the  citizens  ordina- 
rily bring  their  influence  to  bear  upon  the  operation  of  these  gov- 
ernments and  it  is  likewise  through  the  party  that  the  anti-social 
forces  of  our  states  and  cities  have  been  able  to  carry  out  their 
various  designs.  The  ballot  at  the  primary  and  regular  election 
is  the  point  of  contact  between  the  citizen  and  his  government; 
and  the  ballot  at  the  primary  is  in  many  instances  far  more  impor- 
tant than  the  ballot  at  the  regular  election,  for  it  is  at  the  pri- 
maries that  the  citizens  may  determine  party  poUcies  and  the 
selection  of  party  candidates  and  leaders.  It  needs  no  extended 
argument,  therefore,  to  demonstrate  that  from  the  point  of  view 
of  the  citizen  seeking  to  maintain  his  rights  and  do  his  duty, 
a  study  of  poUtical  parties,  their  structures,  and  actual  opera- 
tions can  take  no  secondary  place  in  a  survey  of  American  gov- 
ernment. • 

It  is  well  to  bear  in  mind  at  the  outset  that  the  state  is  a  unit 
in  the  national  party  organization  and  forms  the  basis  of  that 
structure.  The  state  regulates  the  suffrage,  nominations,  pri- 
maries, and  elections,  —  in  short,  practically  all  of  the  operations 
of  parties.  It  is  in  the  state  and  city  organization  that  the  party 
has  reached  its  most  complete  development  and  has  secured  the 
most  rigid  discipHne  over  the  rank  and  file  of  the  voters.  The 
state  organization  also  merges  into  the  larger  national  organiza- 
tion through  the  federal  patronage  and  the  functions  of  United 
States  Senators  and  members  of  Congress  as  party  leaders  in  their 
respective  states.  Nevertheless,  the  overshadowing  interest  in 
national  poHtics  should  no  longer  be  allowed  to  obscure  the  fact 
that  the  foundations  of  party  government  are  laid  in  state  and 
local  organization. 

^  Above,  p.  i66. 

656 


State  and  Local  Politics  657 

State  Party  Organization  and  Operations 

An  examination  of  party  government  very  readily. falls  under 
three  heads:  party  organization,  party  methods,  and  legal  control 
of  parties.  The  formal  structure  of  a  poUtical  party  consists  of 
the  state  and  loral  rhflirmpn,  rnmrm'ttees,  anH  rnnA^pntinnc; 
At  the  head  of  the  state  organization  is  the  chairman  of  the  state 
committee  who  may  or  may  not  be  a  dominant  leader  in  theparty. 
Sometimes,  as  was  the  case  of  Mr.  Quay  in  Penns^fJrvajua  and  Mr. 
Piatt  in  New  York,  the  leader  is  a  United  States  Senator;  some- 
times, but  not  very  frequently,  the  office  of  state  chairman  is 
combined  with  some  high  office  in  the  state  government,  as  was 
the  case  of  Mr.  Odell  of  New  York,  who  was  the  chairman  of  the 
RepubHcan  committee  and  at  the  same  time  governor  of  the 
commonwealth.  Again,  the  chairman  of  the  committee  is 
often  merely  a  figurehead  who  obeys  the  orders  of  leaders,  bosses, 
or  powerful  private  persons  who  dictate  party  policies  and  use 
him  as  a  screen. 

The  state  chairman  in  New  York  is  elected  by  the  state  com- 
mittee in  both  the  Republican  and  Democratic  parties.  Under 
the  primary  law  of  Wisconsin,  the  state  chairman  is  selected  by 
the  party  candidates  for  certain  state  offices  nominated  by  the 
party  at  the  preceding  primary  elections.^  In  general,  we 
may  say  that  the  state  chairman  is  chosen  by  the  state  com- 
mittee or  the  state  convention  or,  under  direct  nomination  laws, 
by  some  group  representing  the  party.  The  term  of  the 
chairman  of  the  Republican  state  committee  in  New  York  is 
usually  two  years,  although  changes  may  be  made  at  the  pleasure 
of  the  committee. 

The  state  committee  of  the  RepubUcan  party  in  New  York  is 
composed  of  one  member  from  each  congressional  district  chosen 
at  the  state  convention  by  the  delegates  of  the  respective  districts 
at  that  convention;  and  to  the  thirty-seven  committeemen  thus 
selected  another  is  added  to  represent  the  colored  vote  through- 
out the  state.  The  Democratic  state  committee  in  New  York 
is  composed  of  one  member  from  each  of  the  fifty-one  senatorial 
districts,  chosen  at  the  state  convention  by  the  delegates  of  the 
respective  districts.  The  Republican  party  uses  the  ■  congres- 
sional district  as  a  imit  partially  because  it  brings  the  state  com- 

^  Certain  party  members  in  office  are  also  included.     See  below,  p.  690. 

2U 


658  American  Government  and  Politics 

mitteeman  in  each  locality  in  touch  with  the  RepubUcan  member 
in  Congress  (if  there  is  one)  who  is  the  dispenser  of  federal  patron- 
age in  the  region. 

The  power  of  a  state  committee,  in  the  absence  of  legislative 
control,  is  impossible  to  define,  because  party  rules  usually  con- 
tain no  provision  on  the  subject,  and  the  work  of  the  committee 
really  depends  upon  the  personal  strength  of  its  members  and 
their  capacity  for  leadership  in  the  party.  In  a  formal  way,  the 
committee  holds  periodical  meetings,  makes  the  preparation  for 
state  conventions,  and  other  state  party  meetings,  and  takes 
charge  of  the  preliminaries  of  such  assemblies. 

The  work  of  the  state  central  committee  is  chiefly  done  by  the 
officers:  the  chairman,  secretary,  and  treasurer  and  such  members 
as  may  see  fit  to  devote  their  time  and  attention  to  party  matters. 
In  most  state  committees  there  is  an  executive  committee,  com- 
posed of  a  small  number  of  members  who  manage  to  gather  into 
their  hands,  by  constant  attention  to  business,  substantially 
all  the  powers.^  It  is  the  business  of  the  state  committee  to  super- 
vise the  process  of  obtaining  a  full  party  registration  and  vote; 
to  prevent  or  heal  quarrels  and  dissensions  within  the  ranks; 
to  see  that  the  local  organization  is  in  good  working  order;  to 
raise  funds;  and  to  nominate  candidates  for  state  offices  in  case 
of  vacancies  or  of  minor  offices  which  do  not  warrant  the  holding 
of  a  state  convention.^  Finally  it  is  the  duty  of  the  committee 
to  direct  the  campaign  throughout  the  state,  cooperating  on  the 
one  hand 'with  the  national  committee  when  there  is  a  national 
election  and  on  the  other  hand  with  the  local  party  committees, 
strengthening  the  weak  places  and  devoting  special  attention  to 
the  districts  in  which  it  is  beUeved  the  vote  will  be  close. 

In  all  commonwealths  of  the  Union,  except  those  states  which 
have  adopted  state-wide  primaries,  it  is  the  practice  for  each 
poHtical  party  to  hold  a  general  convention  periodically  for  the 
purpose  of  nominating  candidates  for  state  offices  and  drafting 
the  platform.  The  convention  of  the  RepubKcan  party  of  New 
York  is  composed  of  delegates  apportioned  among  the  assembly 
districts  roughly  according  to  the  vote  cast  for  the  Republican 

1  This  institution  has  been  abolished  in  the  Republican  party  in  New  York. 

2  This  can  only  be  done  in  New  York  when  the  state  committee  has  been 
expressly  authorized  to  act  in  specific  instances  by  the  state  convention 
at  which  it  is  elected. 


State  and  Local  Politics  659 

candidate  for  President  at  the  last  preceding  national  election. 
Within  recent  years  it  has  been  the  practice  to  apportion  one 
delegate  to  each  assembly  district  and  one  additional  delegate  for 
every  thousand  RepubHcan  votes  or  major  fraction  thereof  cast 
in  the  district.  This  makes  an  unwieldy  convention  of  about 
a  thousand  members.  These  members  are  chosen  by  as- 
sembly district  conventions  or  by  county  conventions  in  those 
counties  which  are  coterminous  with  assembly  districts;  and 
these  county  or  assembly  district  conventions  are  in  turn  made 
up  of  delegates  from  the  lower  units  chosen  by  the  party  voters 
in  official  primaries. 

Generally  speaking  the  convention  follows  estabhshed  parUa- 
mentary  rules.  It  is  called  to  order  by  the  state  chairman,  who 
announces  the  name  of  the  man  selected  by  that  committee  to  act 
as  temporary  chairman  during  the  formal  organization  of  the 
convention.  Without  exception  in  recent  years  the  New  York 
RepubHcan  state  convention  has  ratified  the  choice  of  the  com- 
mittee. The  position  of  the  Republican  temporary  chairman  in 
that  state  is  important,  for  he  appoints  the  committees  on  per- 
manent organization,  platform,  rules,  and  credentials  —  each  of 
which  is  composed  of  one  member  from  each  congressional  district. 
Thus,  through  the  temporary  chairman,  the  state  committee 
may  wield  a  direct  and  powerful  influence,  for  no  doubt  the  com- 
mittee, in  selecting  a  temporary  chairman,  knows  in  advance 
what  his  general  attitude  will  be  toward  the  issues  which  will 
come  before  the  convention.  The  committee  on  credentials 
examines  the  claims  of  contesting  delegates;  as  a  rule  its  report 
is  adopted  by  the  convention,  and  on  the  basis  of  it  the  permanent 
roll  is  made  up  and  the  regular  business  begins.  Following  the 
precedents  set  by  long  usage  in  the  national  party  assembly, 
the  state  convention,  after  organization,  proceeds  to  adopt  a 
platform,  nominate  candidates,  and  transact  whatever  business 
may  be  specifically  mentioned  in  the  call. 

So  far  as  the  management  of  state  party  affairs  is  concerned, 
the  state  convention  is  generally  supreme.  It  is  bound  by  noth- 
ing save  its  own  will,  the  theory  being  that  the  delegates  coming 
"direct  from  the  party  voters"  are  the  sovereign  power  within 
the  party  for  the  time  being.  Accordingly  there  is  often  no  state 
constitution  for  the  party,  but  each  convention  is  regarded  as 
an  original  and  independent  body,  which  may  make  its  own  rules 


66o  American  Government  and  Politics 

of  procedure;   and  for  practical  purposes  it  is  governed  only  by 
the  principles  of  parliamentary  law  and  by  precedents. 

It  is  of  course  the  leading  function  of  the  poUtical  party  to 
nominate  candidates  for  the  various  offices  to  be  filled  by  popular 
election;  and  in  this  connection  some  of  the  gravest  abuses  of 
"machine"  poHtics  have  arisen  through  the  domination  of  con- 
ventions by  sinister  minorities  and  the  enforced  adoption  of  the 
"machine  slate"  by  the  delegates.  Even  the  secure  estabhsh- 
ment  of  the  popular  election  of  party  delegates  has  not  succeeded, 
in  many  instances,  in  breaking  down  the  undesirable  centraUzed 
control  within  the  party,  and  through  the  apathy  or  ineffective- 
ness of  the  rank  and  file,  candidates  are  often  selected  who  sadly 
misrepresent  the  party.  A  very  careful  student  of  contemporary 
poHtics,  who  has  had  an  opportunity  to  secure  first-hand  knowl- 
edge of  the  current  practices,  describes  the  system  as  follows:  — 

The  programme  of  the  convention,  in  practice,  is  almost  always 
decided  upon  down  to  the  minutest  detail,  before  the  convention 
meets.  The  party  leader  or  "boss"  and  his  lieutenants  discuss  the 
relative  claims  of  the  candidates  and  decide  who  shall  be  nominated. 
The  officers  of  the  convention  are  agreed  upon  and  their  speeches 
revised.  All  this  is  outside  the  law  which  ignores  the  existence  of  the 
party  leader  and  assumes  that  the  delegates  are  free  to  exercise  their 
own  judgment.  The  real  interest  in  the  convention  is  usually  centered 
in  the  secret  conferences  of  the  leaders  which  precede  it  and  in  which 
the  contests  over  the  nominations  are  fought  out,  sometimes  with 
much  stubbornness.  The  "slate"  is  finally  made  up  by  agreement 
between  the  leaders  who  control  a  majority  of  the  delegates  in  the 
convention.  The  leaders  of  the  minority  may  either  surrender  or 
they  may  register  their  protest  by  presenting  the  names  of  other  candi- 
dates in  the  convention  with  certainty  of  defeat,  for  it  is  rare  in  state 
conventions  that  there  is  so  equal  a  division  of  strength  as  to  leave 
the  result  in  doubt.  While  the  leaders  are  settling  what  the  conven- 
tion is  to  do,  the  delegates  are  left  to  their  own  devices,  ignorant  of 
what  is  going  on  in  the  "headquarters"  where  the  leaders  are  assem- 
bled. They  are  not  consulted  and  their  advice  is  not  asked.  It  often 
happens  that  they  do  not  know  whom  they  are  to  nominate  until  they 
hear  for  the  first  time  in  the  convention  hall  the  names  of  the  candi- 
dates agreed  upon  by  the  leaders.  Although  the  law  gives  them  the 
right  to  bring  forward  the  names  of  other  candidates,  they  seldom 
exercise  it  and  the  delegate  bold  enough  to  disobey  orders  is  regarded 
with  disapproval.  ^  i 

^  Fuller,  Government  by  the  People,  pp.  61-63.  I 


State  and  Local  Politics  66 1 

The  extent  to  which  such  practices  prevail  in  poHtical  con- 
ventions and  defeat  the  will  of  party  majorities  is  of  course  a 
matter  for  conjecture,  but  of  the  reality  of  the  abuse  and  its  fre- 
quent recurrence  there  can  be  no  doubt. 

Local  Party  Organization  and  Methods 

Leaving  out  of  account  the  congressional  district  organization, 
which,  save  in  rare  instances,  is  of  no  considerable  importance 
in  state  poUtics,  the  basic  unit  in  the  state  party  machinery  is 
the  county  organization.  It  consists  of  a  chairman,  a  committee, 
and  the  conventions  that  are  held  periodically.  The  county 
convention  is  composed  of  delegates  from  lower  units  —  towns, 
townships,  precincts  or  election  districts  as  the  case  may  be. 
The  county  committee,  as  a  rule,  is  also  made  up  of  representa- 
tives from  certain  local  subdivisions,  and  the  chairman  is  either 
chosen  at  the  convention  or  by  the  committee.  The  county 
organization  runs  even  into  the  great  cities:  the  Cook  county 
organization  in  Chicago,  the  New  York  and  Kings  county  organi- 
zations in  New  York  City,  and  the  Suffolk  county  organization 
in  Boston  are  already  famous  in  the  history  of  our  local  poHtics. 

Perhaps  the  most  famous  of  them  all  is  the  organization  of  the 
Democratic  party  in  New  York  county  —  the  central  portion  of 
the  great  metropoHs  —  popularly  known  as  Tammany  Hall 
Dut  officially  known  as  the  Democratic-Republican  organization. 
The  governing  body  in  that  organization  is  the  county  general 
:ommittee,  which  is  composed  of  representatives  from  each  as- 
embly  district  in  New  York  county  —  the  ratio  of  apportion- 
nent  being  one  to  every  twenty-five  Democratic  voters.  This 
nakes  an  enormous  committee,  numbering  at  the  present  time 
nore  than  8000.  It  is  theoretically  a  most  democratic  institu- 
;ion,  for  its  members  come  from  close  contact  with  small  units 
)f  party  voters;  but  as  a  matter  of  fact  its  great  size  makes  it 
n  unwieldy  body,  so  far  as  actual  control  over  party  business  is 
;oncerned.  Its  size  is  defended  on  the  practical  ground  that  it 
:nlists  among  the  official  workers  of  the  party  one  man  out  of 
;very  twenty-five,  and  on  the  still  more  practical  ground  that 
t  brings  some  $80,000  a  year  into  the  party  funds  —  each  mem- 
)er  of  the  county  committee  being  assessed  $10  annually. 

The  real  management  of  the  business  in  this  county  organiza- 


662  American  Government  and  Politics 

tion  is  in  the  hands  of  an  executive  committee  composed  of  one 
leader  from  each  of  the  thirty-five  assembly  districts.  This  leader 
is  chosen  theoretically  by  the  members  of  the  general  committee 
for  his  district/  but  as  a  matter  of  practice  any  member  of  the 
Democratic  party  in  New  York  county  who  wants  to  be  an  as- 
sembly district  leader  ascertains  the  number  of  members  to  which 
his  assembly  district  is  entitled  under  the  ratio  of  one  to  every 
twenty-five  voters  and  then  proceeds  to  make  up  his  "slate"  — 
a  primary  ticket  containing  his  name  first,  followed  by  the  names 
of  his  supporters;  and  if  liis  ticket  wins  at  the  primary,  his  slate 
thereupon  theoretically  proceeds  to  the  formal  task  of  naming 
him  "executive  member."  In  order  to  centralize  control  in  the 
hands  of  the  executive  committee,  a  rule  has  been  adopted  that 
each  new  member  of  that  committee  must  be  approved  by  the 
retiring  committee,  and  if  he  is  not  so  approved,  the  retiring 
committee  may  itself  select  an  executive  member  in  his  stead  — 
in  other  words,  an  executive  committee  once  in  power  may  per- 
petuate its  control. 

The  executive  committee  and  the  men  intimately  associated 
with  it,  although  often  unofficially,  virtually  control  the  govern- 
ment of  the  party  and  the  City  of  New  York  whenever  the  party 
is  in  power.  They  control  the  finances  of  the  county  organiza- 
tion, disburse  the  funds,  agree  upon  the  distribution  of  city  offices, 
and  decide  the  poHcies  of  the  board  of  aldermen  and  other 
branches  of  the  city  administration.-  Prominent  in  the  councils 
of  the  executive  committee  are  the  leaders  and  officials  in  the 
social  organization  known  as  Tammany  Hall.^ 

The  Democratic  county  organization  has  its  regular  officials, 
president,  treasurer,  secretary,  and  other  minor  officers,  but  the 
directing  power  in  the  organization  is  usually  in  the  hands  of 
some  astute  leader  who  may  or  may  not  occupy  an  official  posi- 
tion in  the  party,  but  must  "control"  a  majority  of  the  executive 
committee. 

For  the  purpose  of  making  county  nominations,  the  Democratic 
organization  of  New  York  county  holds  periodical  conventions 
composed  of  delegates  from  each  assembly  district.-  The  con- 
vention is  called  to  order  by  the  president  of  the  county  general 

^  See  above,  p.  473. 

2  For  Mr.  Croker's  famous  description  of  the  system,  see  Readings,  p.  567. 

'  See  above,  p.  135. 


State  and  Local  Politics  663 

committee,  who  acts  as  chairman  unless  a  majority  of  the  con- 
vention direct  otherwise.  As  a  matter  of  practice,  the  business 
of  the  county  convention  is  for  the  most  part  determined  in  ad- 
vance by  the  leaders  in  the  executive  committee  and  the  conven- 
tion merely  ratifies  the  nominations  made  by  that  body.  So 
formal  are  the  proceedings  of  the  county  convention  that  as  a 
rule  it  is  able  to  transact  all  its  business  within  not  more  than 
two  hours. 

The  New  York  county  RepubUcan  organization  is,  in  many 
respects,  modelled  on  that  of  the  Democratic  system.  There  is 
a  general  committee  composed  of  delegates  elected  from  each 
assembly  district  at  a  ratio  of  one  to  every  200  Republican 
voters  —  a  ratio  which  makes  a  much  smaller  general  committee 
than  that  of  Tammany  Hall,  the  number  at  the  present  time  being 
about  650.  There  is  also  an  executive  committee,  composed  of 
one  member  from  each  of  the  thirty-five  assembly  districts  into 
which  the  county  is  divided,  and  elected  by  the  voters  at  the 
primary.  The  general  committee  has  a  president,  and  the  execu- 
tive committee  has  a  chairman.  The  chairman  of  the  executive 
committee  has  the  power  of  appointing  and  removing  election 
inspectors,  poll  clerks,  and  ballot  clerks  —  each  of  the  two  great 
parties  being  assigned  a  certain  number  by  law.  The  election 
officers  are  suggested  to  the  chairman  by  his  district  leaders,  and 
where  the  district  leader  is  not  in  sympathy  with  the  chairman 
he  is  likely  to  have  his  inspectors  removed  if  there  is  a  fight  at 
the  primaries. 

Ward  Politics 

The  basic  unit  of  the  county  organization  is  the  precinct,  ward, 
or  election  district,  —  the  lowest  poHtical  subdivision  of  the  state, 
—  the  unit  in  which  the  polhng  place  is  stationed  and  in  which 
party  delegates  to  the  conventions  of  the  larger  units  are  chosen.^ 
Here  it  is  that  the  party  workers  come  into  immediate  contact 
with  the  voters;  here  it  is  also  that  pubHc  opinion  may  be  or- 
ganized to  bring  pressure  to  bear  upon  the  party  machinery. 
It  is  of  fundamental  importance,  therefore,  that  the  party  should 
have  in  each  precinct,  ward,  or  election  district,  as  the  case  may 
be,  at  least  one  loyal  and  tried  worker,  personally  acquainted 

^  In  the  city  of  New  York  two  election  districts  are  combined  to  make 
a  primary  district. 


664  American  Government  and  Politics 

with  a  large  number  of  the  voters  atid  trained  in  the  art  and 
science  of  winning  votes.  If  this  party  worker,  in  the  lowest 
poHtical  subdivision,  represents  the  interests  and  aspirations  of 
the  party  voters  in  his  district,  we  have  a  representative  party 
organization.  If,  on  the  other  hand,  the  ward  leader  is  appointed, 
sustained,  and  financed  by  some  body  "higher  up,"  the  whole 
party  organization  may  be  lifted  out  of  popular  control  and 
vested  in  the  superior  officers  who  are  in  charge  of  the  base  of 
supplies.  Vote-getting  "pays"  in  the  economic  sense  of  the 
word,  for  the  man  who  can  deliver  votes  can  exact  the  price  from 
those  who  are  wilHng  to  pay  for  the  dehvery,  and  it  has  therefore 
come  about,  in  too  many  instances,  that  party  members,  en- 
grossed in  the  struggle  for  livelihood,  neglect  to  do  their  share 
in  party  work  and  the  organization  falls  into  the  hands  of  those 
who  make  it  their  business  to  be  always  on  guard. 

In  New  York  City,  each  county  is  divided  into  assembly  dis- 
tricts, each  of  which  has  a  committee,  composed  of  the  committee- 
men serving  for  the  district  in  the  county  committee,  and  also 
an  assembly  district  leader  who  is  at  the  same  time  a  member 
of  the  county  executive  committee. 

The  assembly  district  is  in  turn  divided  into  election  districts, 
and  in  each  election  district  there  is  an  election  district  captain 
who  is  almost  always  actually  appointed  by  the  assembly  district 
leader,  who  is,  as  noted  above,  at  the  same  time  a  member  of  the 
county  executive  committee,  which  directs  the  general  business 
of  the  county  organization.  Thus  a  poHtical  hierarchy  is  organ- 
ized, running  down  from  the  state  committee  through  the  county 
executive  committee  to  the  election  district  captain,  —  an  or- 
ganization which  is  financed,  as  a  rule,  not  by  innumerable  small 
contributions  from  the  party  workers  of  each  district,  but  by 
large  contributions  from  men  who  generally  exact  a  price  from 
those  whom  the  party  nominates  and  places  in  governmental 
offices.^ 

^  Organizations  once  created  and  controlling  sources  of  power  tend  to 
perpetuate  themselves  and  become  institutions.  Mr.  Herbert  Spencer 
relates  an  amusing  story  of  a  society  founded  in  England  for  the  purpose  of 
securing  the  enactment  of  certain  legislation  by  Parliament.  It  had  its 
president,  secretary,  treasurer,  paid  workers,  and  generous  contributors,  and 
after  a  long  season  of  agitation  it  succeeded  in  securing  the  passage  of  the 
bill  which  it  had  been  advocating.  Mr.  Spencer,  in  calling  at  the  head- 
quarters of  the  society,  expected  to  find  general  rejoicing,  but  to  his  surprise 


State  and  Local  Politics  665 

The  prime  qualification  of  the  loyal  election  district  captain  is 
subserviency  to  the  leader  of  the  assembly  district/  The  latter  is 
the  "executive  member"  from  the  district,  and  at  the  county  meet- 
ings, his  influence  is  measured  by  the  vote  his  district  casts  and  by 
the  union  existing  among  the  election  district  captains  of  his  district. 
He  is  the  oflicial  distributor  of  the  patronage  which  is  allotted  to  his 
district,  and  unless  he  is  supported  by  a  united  force  of  election  dis- 
trict captains,  the  patronage  may  be  withheld  to  "cause  no  hard 
feeUngs  "  among  the  rank  and  file.  Therefore,  before  a  name  is  placed 
on  the  ticket  for  "president,"  i.e.  captain,  of  the  election  district, 
the  person  bearing  that  name  must  swear  loyalty  to  the  district  leader, 
and  his  promise  must  be  obtained  to  support  that  leader  should  there 
be  any  fight  at  the  primaries. 

In  return  for  this  support,  the  election  district  captain  is  designated 
as  inspector  at  the  various  elections.  To  him  is  intrusted  the  selec- 
tion of  poll  clerks  and  watchers,  and  any  money  that  may  be  sent 
throughout  the  election  district  is  distributed  by  him.  This  is  a 
most  important  task  of  the  election  district  captain,  and  the  proper 
distribution  of  the  money  held  by  the  county  officers  for  campaign 
purposes  is  a  difficult  task.  Each  election  district  captain  endeavors 
to  have  his  allowance  as  much  as  possible,  and  desires  that  he  shall  re- 
ceive no  less  than  any  other  election  district  captain.  The  captain  is 
permitted  to  recommend  persons  in  his  district  for  vacancies  in  the  civil 
service,  and  is  at  fiber ty  to  recommend  candidates  for  the  minor  elec- 
tive offices.  He  is  a  member  of  the  assembly  district  cabinet,  and  at 
local  conventions  heads  delegations  from  his  election  district.  The 
chairmanship  is  his  because  all  delegates  to  the  conventions  are 
selected  by  him  before  being  placed  on  the  primary  ticket.  The 
wise  captain  does  not  take  it  upon  himself  to  name  all  the  delegates, 
but  in  some  convenient  "  watering  place,"  he  calls  a  meeting  of  all  the 
voters  of  his  district  and  allows  them  to  make  suggestions  as  to  who 
should  be  the  delegates. 

It  is  the  last-mentioned  power  that  gives  the  election  district  cap- 
tain his  place.  He  is  the  party  official  who  stands  closest  to  the  people, 
and  by  wise  methods  leads  the  voters  in  his  district  to  beheve  that 

he  found  universal  sorrow,  for  the  achievement  of  the  purpose  for  which  the 
society  was  founded  abolished  the  lucrative  offices  which  it  had  maintained. 
The  same  principle  often  applies  to  political  organizations. 

^  This  description  of  the  work  of  an  election  district  captain  applies  gen- 
erally to  a  certain  party  organization  in  Kings  county,  New  York  (Brooklyn), 
but  it  is  fairly  applicable  to  similar  organizations  in  large  cities.  The 
description  is  furnished  by  an  experienced  party  worker  who  has  personal 
knowledge  of  the  matters  of  which  he  writes.  For  additional  illustrations, 
see  Readings,  pp.  579  flf. 


666  American  Government  and  Politics 

they  are  the  working  force  of  the  party,  and  still  w^orks  in  such  a 
manner  as  to  permit  them  to  do  nothing  that  will  disturb  the  peace  of 
mind  of  his  overlord,  the  assembly  district  leader.  He  will  call  a 
meeting  of  the  voters  of  his  district  and  ask  them  to  select  delegates  to 
conventions;  he  will  impress  upon  these  delegates  the  necessity  for 
harmony  in  the  ranks  if  his  election  district  is  to  be  "recognized"  in 
the  distribution  of  the  "loaves  and  fishes";  he  will  appeal  to  their 
party  loyalty,  and  impress  them  most  strongly  with  the  virtues  of  his 
leader  by  inviting  them  to  partake  of  "  a  little  refreshment,"  in  his 
honor,  and  on  the  night  of  the  convention  will  gather  the  delegates 
together  and  march  with  them  to  the  convention  hall,  making  sure 
that  all  bitter  feelings  are  subdued  and  quenched  along  the  line  of  the 
march. 

The  election  captain  is  looked  to  by  his  boss  to  get  out  every  voter 
of  the  party  in  his  district  at  the  regular  elections  and  on  registration 
days.  If  there  is  a  fight  between  factions  at  the  primaries,  he  is 
charged  with  dehvering  to  his  overlord  every  possible  vote.  His 
power  in  the  assembly  district  meetings  is  measured  by  his  ability  to 
deliver  the  party  vote  for  the  candidates  of  the  party,  and  any  split 
ticket  in  the  district  is  marked  against  him.  Nothing  must  interfere 
with  getting  every  party  man  to  commit  himself  before  a  primary  fight. 
How  each  man  will  vote  at  the  primary  contest  must  be  known  to  him 
and  reported  to  the  leader  of  the  assembly  district  before  primary 
day,  and  every  possible  means  of  gaining  support  must  be  used.  A 
list  of  all  the  newcomers  into  the  district  must  be  made  by  him,  and 
the  names  of  all  party  men  who  leave  the  district  must  be  sent  to  the 
assembly  district  leader.  Every  young  man  who  leans  towards  the 
party,  and  is  twenty  years  of  age,  must  be  known  by  him,  and  all 
efforts  must  be  made  to  secure  his  enrolment  with  the  party  on  his 
twenty-first  birthday. 

The  captain  knows  the  business  of  all  party  men  in  his  district, 
and  his  pockets  are  almost  filled  with  the  business  cards  of  his  electors. 
He  exerts  all  his  efforts  to  find  the  "vulnerable  spots  "  of  the  voters  and 
to  work  on  those  spots.  A  young  lawyer,  for  instance,  is  given  a  case, 
which  the  captain  knows  of,  but  on  examination  it  is  found  that  the 
statute  of  limitations  has  barred  it  years  ago.  But  the  young  lawyer 
feels  complimented  by  the  leader's  apparent  interest.  He  never 
dreams  that  anything  but  interest  in  him  prompted  the  leader.  The 
captain's  time  is  given  almost  exclusively  to  making  the  acquaintance 
of  the  party  men  in  his  district.  He  has  a  corner  office  where  he  sta- 
tions himself  at  a  certain  hour  and  there  holds  forth  to  all  his  acquain- 
tances, especially  the  younger  men. 

All  that  the  captain  does,  however,  has  for  its  purpose  the  strength- 
ening of  the  assembly  district  leader.   If  he  displays  the  sUghtest  aspi- 


State  and  Local  Politics  667 

ration  to  assume  the  district  leadership  himself,  all  the  force  possible 
is  employed  against  him.  He  must  impress  upon  every  voter  the 
•virtues of  his  master,  and  all  objections  to  that  master's  leadership  must 
be  answered  by  a  declaration  of  loyalty.  When  the  assembly  district 
leader  has  stated  his  choice  of  candidates  for  either  appointive  or  elec- 
tive offices,  the  captain  must  use  all  his  influence  to  quiet  any  opposi- 
tion and  must  dehver  delegates  to  support  the  leader's  candidates. 
The  captain  must  bend  to  the  leader's  will  or  throw  over  the  captaincy, 
or,  under  the  method  of  election  now  used,  defeat  the  leader  and  himself 
place  a  ticket  in  the  field  in  opposition  to  the  leader's  ticket  at  the 
primaries.  This  last  method  is  possible,  because  although  a  leader 
may  gain  sufficient  votes  throughout  the  district  to  elect  himself 
leader,  still  each  election  district  votes  for  its  own  officers  and  may 
elect  officers  who  are  not  in  sympathy  with  the  district  leader.  In 
one  assembly  district  in  Brooklyn,  out  of  twenty  election  districts, 
nineteen  went  for  the  candidate  for  assembly  district  leader  in  a  recent 
primary,  and  one  against  him,  and  this  one  elected  a  bitter  opponent 
of  the  leader  and  one  who  aspires  to  the  assembly  leadership.  This 
is  a  good  illustration  of  the  popular  power  that  may  be  exerted  in  the 
RepubHcan  party  in  Kings  county  and  accounts  to  a  great  extent 
for  the  weakness  of  the  "machine"  on  many  occasions. 

To  the  young  man  entering  the  political  field,  the  election  district 
captain  is  the  most  accessible  party  man.  He  is  open  to  all  visitors 
and  does  not  hesitate  to  give  the  young  men  an  opportunity  to  go  as 
delegates  to  the  various  conventions.  At  the  district  cabinet  meet- 
ings he  may  mention  the  young  man  to  the  district  leader  and  rec- 
ommend that  he  would  make  a  good  candidate  for  some  minor  office. 
He  may  also  aid  in  having  the  young  man  delegated  to  the  county 
convention,  and,  if  he  is  strong  enough,  may  have  the  district  leader 
name  him  as  a  delegate  for  the  state  convention.  It  is  at  the  pri- 
maries that  the  young  man  can  begin  his  active  pohtical  work,  and 
there,  in  nine  cases  out  of  every  ten,  he  must  begin  his  work. 


The  Sources  of  Party  Strength 

It  is  evident  that  parties  cannot  exist  without  organization 
and  that  organizations  of  permanent  workers  cannot  exist  with- 
out funds,  and  that  the  funds  must  be  derived  from  some  place  — • 
either  from  loyal  party  supporters  or  from  privatepersohs  and 
organizations  expecting  to  derive  monetary  advantages  from 
the  victory  of  the  organization  to  which  they  contribute.  It 
becomes  necessary,  therefore,  to  examine  the  sources  from  which 
a  party  organization  must  expect  to  derive  its  sustaining  funds. 


668  American  Government  and  Politics 

I.  There  are,  in  the  first  place,  the  public  offices  which  are  to 
be  looked  forward  to  as  the  legitimate  reward  of  party  services. 
The  adoption  of  the  principles  of  civil  service  reform  has  reduced 
to  some  extent  the  relative  number  of  offices  to  be  filled  by  par- 
tisan workers,  but  nevertheless  there  remains  an  enormous 
number  of  federal,  state,  and  local  offices  to  be  distributed.  It 
is  estimated  that  the  political  appointments  within  the  gift  of 
the  President  have  an  annual  value  of  more  than  $12,000,000. 
The  multiplication  of  the  functions  of  state  government  tends  to 
place  an  ever  larger  appointing  power  in  the  hands  of  the  governor 
and  the  state  senate  or  some  other  central  authority.  Every 
state  legislature  has  within  its  gift  appointments  to  legislative 
offices  and  positions  to  employ  for  partisan  purposes,  usually  free 
from  civil  service  control.  For  example,  there  are  sergeants- 
at-arms  and  assistant  sergeants-at-arms,  principal  doorkeepers, 
first  and  second  assistant  doorkeepers,  journal  clerks,  executive- 
clerks,  index  clerks,  revision  clerks,  Ubrarians,  messengers,  post- 
masters, janitors,  stenographers,  and  messengers  to  the  various 
committees  and  assistants  first  and  second,  too  numerous  to  men- 
tion —  the  legislature  of  New  York  costs  the  state  for  its  mere 
running  expenses  alone  more  than  $800,000  a  year.  Then  there 
are  the  city  offices,  high  and  low,  steadily  multiplying  in  num- 
ber and,  in  spite  of  the  civil  service  restrictions,  to  a  large  extent 
within  the  gift  of  the  poUtical  party  that  wins  at  the  polls.  Fi- 
nally there  are  the  election  officers,  a  vast  army  of  inspectors,  ballot 
clerks,  and  poll  clerks  for  the  primary  and  regular  elections,  who 
derive  anywhere  from  $10  to  $50  a  year  for  their  services.  New 
York  City  spends  annually  more  than  $400,000  in  paying  the 
officials  who  preside  at  primaries  and  elections. 

2.  In  the  next  place  there  are  the  levies  on  the  candidates. 
Generally  speaking,  no  one  can  hope  to  be  elected  to  office  to-day 
without  being  nominated  by  one  of  the  poHtical  parties.  The 
party  organization  wages  the  campaign  which  carries  the  candi- 
date into  office,  and  what  is  more  natural  and  just  than  the  demand 
that  the  candidate  shall  help  to  pay  the  legitimate  expenses  of 
the  campaign?  It  is  a  regular  practice,  therefore,  for  party 
organizations,  state  and  local,  to  levy  tribute  from  candidates 
for  nominations  as  well  as  from  nominees  to  office  —  generally 
in  proportion  to  the  value  of  the  office  they  seek.  Mr.  Wheeler 
Peckham  testified  before  the  Mazet  Commission  in  1899  as  fol- 


State  and  Local  Politics  669 

lows:  "It  is  generally  assumed  that  a  candidate  for  a  judicial 
position  [in  New  York  City]  pays  somewhere  or  other,  either 
for  nomination  or  election,  or  assessment  in  some  way,  quite 
a  large  sum.  Judges  have  spoken  to  me  about  assessment 
and  deprecated  the  existence  of  it  very  strongly.  I  suppose  the 
amount  paid  would  range  between  $10,000  and  $25,000.^  .  .  . 
I  assume  that  referees  are  to  a  great  degree  appointed  with  ref- 
erence to  the  judge's  recognition  of  the  political  party  or  poHtical 
organization  that  nominated  or  elected  him,  and  to  which  he 
owed  his  nomination.  Judges  of  the  courts  here  recognize  their 
obUgation  to  the  political  organization  which  elected  them, 
and  they  have  a  desire,  and  it  is  carried  to  a  greater  or  less  extent 
in  the  distribution  of  the  patronage  that  belongs  to  them,  to 
recognize  that  fact."  ^  There  are  in  addition  levies  on  office- 
holders, after  election,  even  in  spite  of  the  laws  forbidding  this 
practice.  Office  holders  do  not  always  wait  to  be  pressed  by 
the  party  in  this  matter.     It  is  not  expedient  to  wait. 

3.  The  construction  of  parks,  school  buildings,  highways, 
and  other  pubHc  works  is  a  fruitful  source  of  revenue  to  the  party 
organization  which  controls  the  letting  of  contracts.  High  bids 
may  be  accepted  on  the  condition  that  the  surplus  shall  go  to 
the  party  war  chest  or  to  party  leaders.  The  capitol  building 
and  grounds  at  Albany  cost  the  state  nearly  $25,000,000,  and  the 
plunder  of  the  pubHc  treasury  in  the  construction  of  the  capitol 
at  Harrisburg  is  a  matter  of  recent  history. 

4.  Undoubtedly  the  most  fruitful  source  of  revenue  for 
party  organizations  within  recent  years  has  been  contributions 
from  corporations  (now  frequently  forbidden  by  law).  Railway, 
insurance,  banking,  gas,  electric,  street  railway,  telegraph,  express, 
telephone,  and  other  pubHc  service  corporations  must  receive 
many  privileges  from  cities  and  states.  They  must  secure  fran- 
chises in  the  first  place,  and  some  must  have  permits  to  tear  up 
streets  and  highways,  and  extend  their  operations  in  various 
forms.  To  secure  special  favors,  for  which  they  ought  to  pay 
large  sums  to  the  public,  corporations  too  often  find  it  cheaper 
and  easier  to  contribute  handsomely  to  party  organizations  and 
to  have  the  organization  "control"  the  proper  officials.    Very 

^  The  salary  of  some  judges  is  $17,500  a  year  and  the  term  fourteen  years. 

2  Report  of  the  Special  Committee  of  the  Assembly  Appointed  to  Investigate 

the  Public  Offices  and  Departments  of  the  City  of  New  York,  Vol.  I,  pp.  358-360. 


670  American  Government  and  Politics 

often,  also,  party  leaders  compH  corporations  to  pay  heavily  for 
securing  permits  to  which  they  are  legitimately  entitled,  and  in 
such  instances  corporations  usually  find  it  easier  to  pay  than 
to  go  to  law  or  argue. 

Mr.  H.  H.  Vreeland,  prominent  in  financial  circles  in  New 
York  City,  testified  during  a  grand  jury  investigation  in  1908 
that  he  had  contributed  five  years  before  on  behalf  of  a  certain 
corporation  $20,000  to  Mr.  Odell,  chairman  of  the  Republican 
state  committee  and  $16,500  to  Mr.  Murphy,  leader  of  the 
Tammany  Democracy  in  New  York  City.^  The  way  in  which 
the  MetropoHtan  Street  Railway  Company  had  to  deal  with  New 
York  poUticians  he  further  described  in  the  following  testimony: 

Question:  In  these  corporate  ventures  that  you  have  been  con- 
nected with  of  a  large  character,  have  you  found  that  the  favors  to 
politicians,  contributions  to  political  parties,  election  expenses,  have 
been  of  value  or  were  commonly  esteemed  to  be  of  value  to  the  corpora- 
tion?    Answer:  I  have  found  that  they  were  esteemed  to  be  of  value. 

Question:  Is  it  necessary  for  the  Metropolitan  Street  Railway  to 
open  the  streets  of  New  York  a  great  deal?     Answer:   Yes,  Sir. 

Question:  Whenever  they  want  to  open  a  street  they  have  to  get 
the  permit  countersigned  by  the  Borough  President  and  the  Commis- 
sioner of  Gas,  Electricity,  and  Water  Supply?    Answer:    Yes,  Sir. 

Question:  Each  of  them  has  got  to  sign  a  permit  before  it  is  opened? 
Answer:  Yes,  Sir,  and  whenever  the  property  is  adjacent  to  a  park 
it  has  to  be  signed  by  the  park  official. 

Question:  An  antagonistic  water,  gas,  or  electricity  official  could 
impede  somewhat  the  work  of  the  railroad  company  in  the  city  here? 
Answer:   Very  materially. 

Question:  Did  you  ever  have  any  experience  with  being  impeded 
in  that  way?     Answer:  Yes,  Sir;  I  have  a  number  of  instances. 

Question:  And  afterwards  were  those  impediments  withdrawn? 
Answer:    They  were. 

Question:  Withdrawn  without  legal  process?    Answer:  Yes,  Sir. 

Question:  Was  the  method  of  securing  those  withdrawals  such 
that  led  you  to  believe  that  it  had  been  by  cultivating  in  some  way  the 
favor  of  these  officials?  Answer:  There  was  no  action  of  any  kind 
that  would  give  me  any  impression  on  it,  because  a  permit  would  be  in 
the  [proper  city]  office  and  under  the  best  endeavor  we  could  not  get 
it,  and  all  of  a  sudden  it  was  signed  and  sent  up  to  our  office. 

Question:   You  have  no  doubt  in  your  own  mind  as  to  why  the 

'  New  York  Times,  April  23,  1908. 


State  and  Local  Politics  671 

permit  was  given  —  somebody  was  "seen,"  and  therefore  the  permit 
was  given?  Answer:  I  would  have  a  very  strong  idea  that  some- 
thing had  been  done. 

5.  The  most  despicable  source  of  party  revenue  is  that  derived 
from  the  protection  of  saloons,  gambling,  and  vice  in  every  form. 
The  extent  to  which  this  opportunity  is  exploited  is,  of  course, 
difficult  to  determine;  but  indisputable  evidence  from  cities 
as  far  apart  as  San  Francisco  and  New  York  illustrates  only  too 
painfully  the  way  in  which  party  war  chests  are  sometimes 
augmented  by  stained  money  drawn  from  criminal  elements  to 
which  police  immunity  is  afforded.^ 

Although  the  exact  amount  of  money  collected  by  various 
poKtical  organizations  from  time  to  time  is  difficult  to  ascertain, 
the  total  levied  in  any  year  of  a  general  election  undoubtedly 
reaches  a  fabulous  sum,  and  this  money  is  applied  largely  to 
the  conduct  of  campaigns,  although  some  portions  of  it  frequently 
find  their  way  into  the  private  exchequers  of  party  leaders.  It 
is  spent  for  printing,  advertising,  hiring  halls,  securing  speakers, 
and  paying  the  rank  and  file  of  party  workers.  Undoubtedly 
large  sums  find  their  way  through  some  of  the  election  district 
captains  to  venal  voters.  The  extent  of  the  purchasable  vote 
is,  of  course,  impossible  to  state;  but  a  careful  study  of  Rhode 
Island  made  some  years  ago  placed  it  between  ten  and  twenty- 
five  per  cent  of  the  total  number.^  Every  worker  in  practical 
politics,  although  he  may  not  acknowledge  it,  probably  knows 
that  votes  are  bought,  sometimes  grossly  by  outright  purchase 
at  a  fixed  price,  and  at  other  times  in  more  subtle  ways,  as  for 
example,  by  paying  railway  fares  and  expenses  for  electors  going 
home  to  vote,  paying  countrymen  to  come  out  to  vote,  and 
employing  party  workers  with  the  tacit  understanding  that  they 
have  little  or  nothing  to  do. 

It  is  by  no  means  through  money  alone  that  the  party  organiza- 
tion may  maintain  its  strength.  The  party,  like  a  church  or 
any  other  organization,  may  be  used  as  a  social  club  through 
which  the  young  man  may  make  valuable  acquaintances  who  can 
help  him  in  securing  business,  clients,  or  patients  as  the  case  may 
be.    The  very  power  of  the  party  organization  thus  enables  it 

^  For  the  testimony  of  Police  Captain  Schmittberger  before   the  Lexow 
Investigating  Committee  in  New  York,  see  Readings,  pp.  505-508. 
2  See  article  on  "  Venal  Voting, "  in  the  Forum  for  October,  1892. 


bjz  American  Government  and  Politics 

to  intrench  itself  by  drawing  within  its  rank  the  best  energies 
and  talents  of  young  men  who,  though  by  no  means  void  of  patri- 
otic motives,  cannot  be  oblivious  to  the  stern  necessities  of  the 
struggle  for  %xistence.  In  some  cities,  it  is  well  for  the  young 
lawyer  practising  in  certain  courts  to  be  known  as  a  prominent 
worker  in  the  party  to  which  the  presiding  judges  belong.  A 
Democratic  doctor  in  a  strongly  Republican  district  of  some 
northern  city  would  doubtless  find  his  rise  in  the  world  some- 
what handicapped  if  he  were  overzealous  in  the  support  of  his 
party,  and  a  belligerent  Republican  lawyer  in  a  southern  city 
might  very  well  find  his  business  limited  to  practice  in  the  federal 
courts.  The  subtle  influences  of  party  control  are  doubtless 
more  powerful  than  the  gross  influences  which  appear  upon  the 
surface. 

The  last,  but  by  no  means  the  least,  powerful  element  in 
organized  politics  is  the  management  of  the  voters.  Party 
leaders  and  workers  assist  the  poor  voters  by  a  thousand  chari- 
table acts.  They  give  outings,  picnics,  clam-bakes,  and  celebra- 
tions for  them;  they  help  the  unemployed  to  get  work  with 
private  corporations  or  in  governmental  departments;  they 
pay  the  rent  of  sick  and  unfortunate  men  about  to  be  dispossessed; 
they  appear  in  court  for  those  in  trouble,  and  often  a  word  to 
the  magistrate  saves  the  voter  from  the  workhouse  or  even  worse; 
they  remember  the  children  at  Christmas;  and,  in  short,  they 
are  the  ever  watchful  charity  agents  for  their  respective  neigh- 
borhoods. A  kind  word  and  a  little  money  in  time  of  pressing 
need  often  will  go  further  than  an  eloquent  tract  on  civic  virtue.^ 
Thus  pontics  as  it  works  through  party  organization  is  a  serious 
and  desperately  determined  business  activity;  it  works  night 
and  day;  it  is  patient;  it  gets  what  it  can;  it  never  relents. 

Election  Laws 

The  frequent  abuses  connected  with  party  organizations  and 
operations,  as  we  have  seen,-  have  led  to  elaborate  laws  con- 
trolling the  entire  election  process  from  the  enrolment  of  the 
voters  to  the  final  review  of  the  official  count.  It  is  impossible 
to  set  down  here  in  any  detail  the  provisions  of  the  election  law  of 
a  single  state,  —  the  election  law  of  New  York  is  a  volume  of 
^  See  Readings,  pp.  579  ff.  ^  Above,  p.  139. 


State  and  Local  Politics  673 

about  250  pages  of  ordinary  print,  —  but  the  following  principles 
are  now  to  be  found  in  the  legislation  of  any  fairly  advanced 
commonwealth :  — 

1.  Certain  officers  —  the  secretary  of  state,  county  clerks, 
and  in  some  instances  special  authorities  —  are  placed  in  charge 
of  the  entire  election  process. 

2.  Provisions  are  made  for  bi-partisan  boards  of  poll  clerks, 
ballot  clerks,  and  election  inspectors  in  each  polling  place  within 
the  state. 

3.  Duly  authorized  watchers  from  each  party  may  be  present 
at  each  polhng  place  in  order  to  secure  a  fair  count. 

4.  Standard  and  official  tally  sheets,  or  records,  on  which  to 
make  the  returns  of  each  polling  place,  are  furnished,  and  all 
returns  must  be  certified  by  the  proper  officers  in  charge. 

5.  Special  arrangements  are  made  to  police  polling  places, 
and  saloons  are  usually  closed  on  election  days. 

6.  In  order  to  secure  to  every  citizen,  properly  qualffied,  the 
right  to  vote,  official  registers  of  voters  are  prepared  before  each 
election,  and  each  citizen  is  entitled  to  enter  his  name  so  that  on 
election  day  his  right  may  be  reahzed.  A  most  drastic  scheme 
for  preventing  false  registration  was  created  in  New  York,  in 
1908,  by  a  law  requiring  the  personal  identification  of  voters  in 
cities  of  1,000,000  or  more  inhabitants.  ^  According  to  this  law 
the  voter,  on  registering,  in  addition  to  answering  the  ordinary 
questions,  must  give  the  number  of  the  floor  or  room  in  which  he 
lives  and  the  name  of  the  householder  or  tenant  with  whom 
he  Uves;  he  is  furthermore  required  to  sign  his  name  if  he  can 
write,  and  when  on  election  day  he  appears  to  vote  he  must  again 
sign  his  name  opposite  the  first  signature.  In  case  the  voter  is 
unable  to  write,  he  must  answer  a  long  list  of  questions  with 
regard  to  his  private  affairs,  residence,  and  employment;  and 
when  he  appears  on  election  day  he  is  required  to  answer  the  same 
questions.  By  a  comparison  of  the  signatures  or  the  answers 
to  the  questions,  the  election  officials  are  able  to  detect  frauds 
and  thus  prevent  from  voting  a  large  number  of  "floaters"  and 
"repeaters."  There  is  no  doubt  but  what  the  effect  of  the  law 
has  been  most  salutary. 

7.   Finally,  we  have  a  long  line  of  important  legislation  on  the 
ballot  —  designed  to  prevent  intimidation  by  securing  secrecy 
*  California  already  haxl  a  similar  law. 

2X 


674  American  Government  and  Politics 

to  the  voter,  and  to  encourage  independent  and  discriminating 
choice  from  among  the  variqus  candidates  in  place  of  the  blind 
acceptance  of  party  nominations.  Legislation  of  this  character 
is  now  so  prominently  before  the  public  and  the  principles  'in- 
volved are  so  important  that  it  seems  desirable  to  go  into  the 
matter  at  some  length/  elaborating  the  general  statements  made 
above.^ 

Prior  to  1888  the  printing  of  ballots  for  use  in  the  election  of 
public  officers,  and  their  distribution  to  the  voters,  was  left  to 
private  initiative  —  subject  generally  to  a  few  statutory  regula- 
tions as  to  their  size,  color,  form,  etc.,  chiefly  designed  to  produce 
uniformity  and  to  prevent  the  use  of  misleading  or  deceitful 
forms  of  ballot.  In  actual  practice  the  ballots  were  printed  and 
distributed  by  the  several  party  organizations,  prepared  by  the 
voters  —  in  case  any  "scratching"  of  party  candidates  was  to 
be  done  —  before  going  to  the  polls,  and,  when  taken  to  the 
polhng  place  on  election  day,  merely  deposited  in  the  ballot-box 
in  plain  view  of  all  present. 

In  most  of  the  states  the  statutory  provisions  deahng  in  any 
way  with  the  preparation  or  use  of  ballots  were  comparatively 
brief  and  simple.  The  Kansas  law  of  1868  is  a  fair  example.^ 
Its  pro\dsions  are  as  follows:  — 

"  §  7.  Manner  of  voting.  Each  elector  shall,  in  full  view,  deliver 
to  one  of  the  judges  of  election  a  single  ballot  or  piece  of  paper,  on 
which  shall  be  written  or  printed  the  names  of  the  persons  voted  for, 
with  a  proper  designation  of  the  office  which  he  or  they  may  be  intended 
to  fiU. 

"  §  8.  Duty  of  Judge;  ballots  how  disposed  of.  The  judge  to  whom 
any  ticket  may  be  delivered  shall,  upon  the  receipt  thereof,  pronounce, 
in  an  audible  voice,  the  name  of  the  elector,  and,  if  no  objection  shall 
be  made  to  him,  and  the  judge  is  satisfied  that  the  elector  is  legally 
entitled,  according  to  the  constitution  and  laws  of  this  state,  to  vote 
at  the  election,  he  shall  immediately  put  the  ticket  in  the  box  without 
inspecting  the  names  written  or  printed  thereon,  and  the  clerks  of  the 

^  Note.  —  For  the  entire  statement  given  here  with  regard  to  recent 
ballot  legislation  I  am  indebted  to  Mr.  Arthur  Crosby  Ludington,  who  has 
generously  prepared  the  manuscript  fpr  me  after  long  and  critical  examina- 
tion of  the  whole  subject.  For  a  fuller  account,  see  his  article  in  the  South 
Atlantic  Quarterly  for  January,  1910,  and  his  chapter  in  the  New  York 
Library  Bulletin  of  Legislation  for  1910. 

2  See  above,  p.  141.  3  Gen.  Stat.,  1868,  ch.  36,  Art.  2. 


State  and  Local  Politics  675 

election  shall  enter  the  name  of  the  elector  and  number  in  the  poll- 
books  ..." 

There  was  usually  some  provision  for  checking  off  the  names 
of  voters  on  the  registry  list  or  poll  lists  as  they  voted,  so  that 
the  total  number  of  ballots  cast  could  be  accurately  determined 
and  ballot-box  stuffing  prevented.  There  were  also  penal 
provisions  to  guard  against  violence,  intimidation,  ballot-box 
stuffing,  "repeating,"  voting  without  being  quahfied  to  vote, 
bribery,  false  swearing  when  challenged,  non-performance  or 
mal-performance  of  duty  by  election  officers,  etc.,  —  in  short, 
the  grosser  varieties  of  election  offences. 

This  system  of  so-called  "vest-pocket"  ballots  was  found, 
as  party  rivalry  became  more  intense,  to  be  deficient  in  many 
respects,  and  open  to  the  most  serious  abuses.  Chief  among  its 
defects  was  its  utter  failure  to  provide  for  secrecy  in  voting. 
Since  the  voter  could  be  watched  from  the  moment  a  ballot  was 
handed  to  him  somewhere  outside  the  polling  place  until  he  de- 
posited the  same  in  the  ballot-box,  it  could  easily  be  ascertained 
whether  he  had,  according  to  the  modern  phrase,  "delivered  the 
goods."  The  result  of  this  was  to  facilitate  and  encourage  bribery. 
Another  result  was  that  persons  economically  dependent,  being 
deprived  of  the  protection  of  secrecy,  were  coerced  into  voting 
as  others  bade  them,  or  punished  if  they  disobeyed.  The  ex- 
pense of  printing  the  ballots,  moreover,  while  not  a  heavy 
burden  on  the  party  organizations,  was  large  enough  to  act  as 
a  deterrent  on  independent  candidacies;  and  such  tricks  as  the 
distribution  to  voters  of  one  party  of  ballots  bearing  the  name 
or  emblem  of  that  party  but  the  candidates  of  another,  or  of 
ballots  containing  the  wrong  candidates  for  certain  offices,  while 
usually  forbidden  under  the  penal  law,  v/ere  nevertheless  common. 

The  prevalence  of  these  abuses,  especially  in  the  presidential 
campaign  of  1884,  aroused  a  strong  movement  for  reform^  and 
finally  led  to  the  adoption  by  most  of  the  states  of  the  so-called 
"Australian  ballot  system."  The  principal  features  of  this 
system  may  be  outlined  as  follows; 

I .  All  ballots  used  in  elections  of  public  officers  (except,  usually, 
certain  minor  local  elections)  are  printed  under  the  direction  of 

1  Described  in  an  article  by  W.  H.  Glasson  on  "  The  Australian  Voting 
System,"  South  Atlantic  Quarterly.  April,  1909.     Above,  p.  141. 


676  American  Government  and  Politics 

public  officials,  at  public  expense,  and  are  distributed  by  these 
officials  to  the  various  polHng  places  prior  to  the  election. 

2.  Each  ballot  contains  on  a  single  sheet  the  names  of  all  the 
candidates  duly  nominated  by  any  poHtical  party  or  independent 
group,  whose  names  have  been  certified  to  certain  designated  pub- 
lic officers  a  specified  number  of  days  before  the  election,  and  is 
protected  against  counterfeit  by  an  official  indorsement  on  the 
back. 

3.  Ballots  are  obtainable  by  the  voters  only  within  the  poUing 
places,  on  election  day,  from  the  regular  election  officials,  and  are 
to  be  marked  in  absolute  secrecy  in  voting  booths  provided  for 
the  purpose,  folded  so  as  to  conceal  the  marking  on  the  face  and 
yet  leave  exposed  the  official  endorsement  on  the  back,  and  re- 
turned to  the  election  officers  to  be  deposited  in  the  ballot-box, 
before  the  voter  leaves  the  polling  place. 

4.  Special  safeguards  —  in  addition  to  those  contained  in  the 
earUer  American  laws  —  are  usually  provided  to  insure  that  the 
official  ballots  shall  not  be  lost  or  stolen,  or  their  contents  di- 
vulged prior  to  election  day  (except  as  the  pubhcation  or  distri- 
bution of  sample  ballots  is  permitted);  that  none  but  official 
ballots  shall  be. cast  or  counted;  that  the  number  of  ballots 
counted  shall  correspond  exactly  with  the  number  of  persons 
voting,  and  that  the  ballot  actually  cast  by  each  voter  shall  be 
the  identical  one  given  to  him  by  the  election  officers  (these  last 
two  objects  are  usually  sought  to  be  attained  by  a  system  of 
detachable,  numbered  stubs) ;  that  no  official  ballot  shall  be  left 
unaccounted  for  when  the  election  is  over;  that  no  electioneering 
shall  be  done  in  or  around  the  poUing  place;  that  only  the  election 
officers,  the  duly  appointed  watchers  of  each  party,  and  a  specified 
number  of  voters  shall  be  allowed  within  the  polKng  place  at  any 
given  time;  that  no  voter  shall  place  any  mark  upon  his  ballot 
tending  to  identify  it  as  having  been  cast  by  him,  or  shall  divulge, 
while  in  or  near  the  polling  place,  how  he  has  voted;  and  that  no 
election  officer  or  other  person  shall  attempt  to  discover,  or  having 
discovered  shall  in  any  way  disclose,  how  any  voter  has  voted. 

The  first  law  adopted  in  the  United  States  embodying  the  es- 
sential features  of  this  system  was  enacted  by  the  legislature  of 
Kentucky  and    approved    by  the  governor    on    February  24, 
1888,  and  went  into  effect  at  once.^     It  applied  only  to  munici- 
^  Laws,  1877-78,  ch.  266. 


State  and  Local  Politics  677 

pal  elections  in  the  city  of  Louisville.  In  this  act  the  EngUsh 
and  AustraHan  models  were  quite  closely  followed.  All  candi- 
dates were  to  be  nominated  by  petition,  and  their  names  were  to 
be  printed  on  the  ballot  in  alphabetical  order  under  the  title  of  each 
office  to  be  voted  for,  and  without  party  designations  of  any  sort. 

This  act,  on  account  of  its  failure  to  recognize  in  any  way  the 
peculiar  party  system  which  had  grown  up  in  this  country,  was 
afterwards  followed  as  a  model  by  but  few  other  states. 

A  statute  which  has  been  far  more  generally  copied,  and  which 
has  often  received  the  credit  of  being  the  first  AustraHan  ballot 
law  adopted  in  the  United  States,  is  the  Massachusetts  act  of 
1888.^  In  this  act  the  original  AustraHan  system  was  modified 
by  the  recognition,  in  several  respects,  of  the  party  organiza- 
tions. A  poHtical  party  was  defined  for  the  purposes  of  the  elec- 
tion law,  the  criterion  being  the  casting  of  a  certain  percentage  of 
the  total  vote  at  the  preceding  state  election.^  Any  group  of 
voters  conforming  to  this  definition  was  allowed  to  nominate,  by 
caucus  or  convention  of  delegates,  one  candidate  for  each  office  to 
be  filled  at  any  election,  and  to  secure  the  placing  of  his  name  on 
the  official  ballot  by  means  of  a  "certificate  of  nomination," 
signed  by  the  presiding  officer  and  secretary  of  the  caucus  or 
convention,  and  filed  with  the  secretary  of  the  commonwealth, 
or  the  officer  charged  with  the  duty  of  having  the  ballots  printed, 
a  certain  number  of  days  before  the  date  of  the  election.  The 
name  of  each  candidate  so  nominated  was  to  be  foUowed  on  the 
ballot  by  the  designation  of  the  party  which  had  nominated  him. 
For  the  sake  of  independent  voters,  and  of  newly  formed  political 
groups,  it  was  provided  that  candidates  might  also  be  nominated 
by  means  of  "nomination  papers,"  signed  by  a  prescribed  num- 
ber of  qualified  voters,  and  that  any  voter  might  write  on  his 
ballot,  in  blank  spaces  provided  therefor,  the  names  of  any  other 
persons  whom  he  wished  to  vote  for  as  candidates  for  any  office.^ 
The  names  of  all  the  candidates,  however  nominated,  were  to  be 
arranged  in  alphabetical  order  under  the  title  of  each  office. 

^  Acts  1888,  ch.  436;  approved  May  29,  1888;  went  into  effect  Novem- 
ber I,  1889. 

2  Other  criteria  have  since  been  adopted  in  different  states. 

^  This  latter  provision  was  merely  continued  from  the  earlier  American 
laws,  having  generally  been  held  by  the  courts  to  be  a  right  constitutionally 
guaranteed  to  the  voter.  - 


678  American  Government  and  Politics 


>piea     ^ 


A  third  statute,  which  has  since  been  even  more  widely  copi( 
than  that  of  Massachusetts,  was  the  Indiana  law  of  1889.^  This 
act  represented  a  still  further  compromise  with  the  American 
party  system.  It  provided  for  a  form  of  ballot  —  which  has 
since  come  to  be  known  as  the  "party  column"  form  —  on  which 
all  the  candidates  of  each  party  were  grouped  in  a  separate  col- 
umn, the  columns  being  placed  side  by  side  with  the  names  of  all 
the  candidates  for  any  one  office  on  the  same  horizontal  line. 
At  the  head  of  each  column  was  placed  the  name  of  the  party  and 
some  simple  device  or  emblem  selected  by  the  party  to  designate 
its  candidates;  also  a  circle,  usually  known  as  the  "party  circle," 
by  a  single  cross-mark  in  which  the  voter  could  vote  for  all  the 
candidates  in  the  "party  column"  below.  This  special  method  of 
voting  a  "straight  ticket"  has  usually  accompanied  the  "party 
column"  form  of  ballot,  and,  as  was  demonstrated  by  the  late 
Philip  Loring  All  en, ^  has  had  a  most  important  effect  in  discourag- 
ing independent  voting  and  preserving  intact  the  two  great  party 
organizations. 

In  this  same  year —  1889  —  six  other  states  adopted  Austra- 
lian ballot  laws,  and  Connecticut  also  passed  a  halfway  measure 
providing  for  separate,  unofficial  ballots  for  each  party,  printed 
(as  under  the  Louisiana  law  of  1877)  on  paper  officially  furnished, 
and  to  be  inclosed  (somewhat  as  under  the  Utah  law  of  1878)  in 
ofiicial  envelopes  obtainable  only  at  the  polling  places.  From 
then  on  the  progress  of  ballot  reform  was  rapid.^ 

^Laws,  1889,  p.  157;  App.  March  6. 

2  Mr.  Allen,  in  a  thoughtful  and  convincing  article  on  "Ballot  Laws 
and  Their  Workings,"  in  the  Political  Science  Quarterly  for  March,  1906, 
came  to  the  conclusion  that  where  the  marking  of  each  individual  candidate 
on  the  ballot  is  compulsory  the  voters  exercise  from  twice  to  ten  times  the 
discrimination  among  the  candidates  shown  under  the  other  ballot  systems 
which  favor  straight  voting.  At  the  bottom  of  the  scale  in  proportion  of 
independent  voting  are  the  states  requiring  the  voter  to  write  or  paste  in 
names  whenever  he  wishes  to  "scratch  his  ticket." 

^  In  1890  five  states  and  one  territory  adopted  Australian  ballot  laws, 
Kentucky  passed  laws  similar  to  the  Louisville  act  of  1888  for  four  other 
cities,  and  New  Jersey  and  New  York  enacted  compromise  measures,  some- 
what more  advanced  than  the  Connecticut  act  of  1889,  providing  for  a  sepa- 
rate oflScial  ballot  for  each  party  (and,  in  the  case  of  New  Jersey,  for  official 
envelopes). 

la  1 89 1  seventeen  more  states  and  another  territory  were  added  to  the 
ranks. 


State  and  Local  Politics  679 

At  the  close  of  1896,  only  eight  years  after  the  first  law  was 
adopted  in  this  country,  there  were  thirty-eight  states  and  two 
territories  with  state-wide  Australian  ballot  laws,  two  more 
(Tennessee  and  Texas)  with  Austrahan  ballot  laws  applying  to 
cities  or  counties  above  a  certain  size,  and  two  others  (Connecticut 
and  New  Jersey)  with  halfway  laws  embodying  certain  features 
of  the  AustraKan  system.  In  the  whole  United  States  only 
Georgia,  the  two  Carolinas,  and  New  Mexico  had  as  yet  failed  to 
adopt  the  reform  to  some  extent.^ 

At  present,  forty  states  and  one  territory  have  state-wide 
Austrahan  ballot  laws,  two  states  (Tennessee  and  North  Carolina) 
have  similar  laws  which  are  not  state-wide,  two  states  and  one 
territory  (Missouri,  New  Jersey,  and  New  Mexico)  have  halfway 
measures  embodying  certain  features  of  the  Australian  system, 
and  only  Georgia  and  South  Carolina  remain  totally  unregenerate. 

The  more  important  forms  of  ballot  which  have  been  used  in 
this  country  since  the  adoption  of  the  Australian  system  (not 
counting  the  compromise  forms  now  used  by  Missouri,  New 
Jersey,  and  New  Mexico)  may  be  divided  into  four  principal 
classes.  These  are:  First,  the  straight  "Massachusetts"  ballot, 
in  which  the  names  of  the  candidates  of  all  parties  (either  with 
or  without  party  designations)  are  grouped  in  order  (usually  in 
alphabetical  order)  under  the  title  of  each  office,  and  in  which 
there  is  only  one  method  of  marking  the  ballot  —  i.e.  by  means 
of  a  cross  opposite  the  name  of  each  candidate  to  be  voted  for. 
The  model  for  this  class  is,  of  course,  the  Massachusetts  act 
of  May  29,  1888.    Second,  the  "party  column"  form  of  ballot, 

In  1892  two  more  Australian  ballot  laws  were  enacted,  and  Kentucky  for 
the  first  time  passed  a  state-wide  law. 

Two  more  states  were  added  in  1893,  one  in  1894,  one  in  1895  —  in  which 
year  New  York  abandoned  the  compromise  system  of  1890  in  favor  of  the 
full  Australian  system  as  adopted  by  most  of  the  other  states  —  and,  finally, 
two  in  1896. 

^  In  1897  Missouri  abandoned  the  regular  Australian  ballot  system  (the 
only  case  in  which  this  has  happened)  and  adopted  a  system  of  separate 
official  ballots  for  each  party  somewhat  like  that  of  New  Jersey.  In  1903 
Texas  adopted  a  similar  system  for  the  whole  state.  In  1905,  however,  this 
law  was  repealed  and  a  state-wide,  Australian  ballot  law  adopted.  In  the 
same  year  New  Mexico  adopted  the  "separate  official  ballot"  system.  In 
1909  Connecticut  joined  the  ranks  of  the  straight  Australian  ballot  states, 
and  North  Carolina  passed  its  first  Australian  ballot  law  to  apply  to  one 
county. 


68o  American  Government  and  Politics 

with  special  provision  for  voting  a  "straight  ticket"  by  a  single 
cross  in  the  "party  circle,"  or  by  some  other  method  simpler  than 
that  by  which  a  "split  ticket"  may  be  voted.  The  original 
model  for  this  form  of  ballot  is  found,  as  above  indicated,  in  the 
Indiana  law  of  March  6,  1889.  Third,  the  modified  "Massa- 
chusetts" form,  in  which  the  grouping  of  the  candidates'  names 
under  the  titles  of  the  several  offices  is  preserved,  but  a  special 
provision  for  voting  a  straight  party  ticket  is  added.  The  first 
states  to  adopt  this  form  of  ballot  were  Montana  and  Minnesota, 
on  March  13  and  April  24,  respectively,  1889.  Fourth,  the 
modified  "Indiana"  form,  in  which  the  "party  column"  arrange- 
ment is  retained,  but  with  no  special  provision  for  voting  a 
straight  party  ticket  —  the  only  method  of  marking  the  ballot 
being  a  cross  opposite  the  name  of  each  candidate  to  be  voted  for, 
just  as  in  form  number  one.  The  earliest  example  of  this  form 
of  ballot  is  the  Missouri  act  of  May  16,  1889,  applying  only  to 
cities  of  over  5000  inhabitants. 

1.  During  the  earher  years  of  ballot  reform  the  most  popular  of 
these  four  forms  was  the  first.  In  1891  it  had  been  adopted  by 
sixteen  states,  as  against  thirteen  which  had  adopted  the  "party 
column"  ballot.  In  this  same  year,  however,  Washington 
changed  over  from  the  first  class  to  the  second,  and  from  this 
time  on  the  trend  in  the  direction  of  the  "party  column"  form 
was  very  marked.  At  the  close  of  1905  only  ten  states  were 
found  in  the  first  class  —  using  the  Massachusetts  ballot.^  In 
the  last  few  years,  however,  this  form  of  ballot  (usually  without 
party  designation)  has  been  adopted  in  a  number  of  states  for 
certain  municipal,  judicial,  or  school  elections,  and  in  1909  Okla- 
homa adopted  it  in  place  of  the  "party  column"  form.  Besides 
these  actual  changes  there  has  been  considerable  agitation  in  a 
number  of  states  in  favor  of  the  "Massachusetts"  ballot,  so  that 
the  tide  may,  perhaps,  be  fairly  said  to  have  turned. 

2.  The  Indiana  or  "party  column"  form  of  ballot  has  been, 
ever  since  about  1 891,  by  far  the  most  popular  in  this  country, 
having  been  adopted,  at  one  time  or  another,  by  thirty-five 
states.     At  the  close  of  the  year  1891  the  group  of  states  using 

^  The  eleven  states  which  at  present  use  it  for  practically  all  elections 
are  Arkansas,  Florida,  Maryland,  Massachusetts,  Minnesota,  Mississippi, 
Nevada,  Oklahoma,  Oregon,  Tennessee  (only  certam  cities  and  counties), 
and  Virginia.  j 


State  and  Local  Politics  68 1 

it  numbered  thirteen.  In  1905  the  number  had  risen  to  twenty- 
seven,  which  was  [the  high  water  mark.  During  the  next  three 
years  it  fell  to  twenty-six,  but  by  the  close  of  1909  (if  North 
CaroKna,  where  the  "party  column"  form  of  ballot  was  adopted 
for  one  county,  be  included)  it  had  again  risen  to  twenty-seven.^ 

3.  The  modified  "Massachusetts"  form  of  ballot,  with  special 
provision  for  voting  a  straight  party  ticket,  has  never  been  very 
widely  adopted.  At  one  time  or  another  it  has  been  tried  by 
nine  different  states,^  but  at  present  it  is  used  by  only  three  of 
these.^  The  general  testimony  from  those  states  which  have 
tried  it  is  that,  in  its  practical  working,  it  resembles  far  more 
closely  the  "Indiana,"  than  the  straight  "Massachusetts,"  form. 

4.  The  modified  "party  column "  form  of  ballot  with  no  simple 
way  of  voting  a  straight  ticket  has  been  even  less  widely  adopted 
than  that  just  mentioned,  and  it  is  at  present  used  by  only  two 
states.*  In  its  actual  working  this  ballot  resembles  the  straight 
"Massachusetts"  form  more  nearly  than  does  the  modified 
"Massachusetts"  form  used  by  class  number  three. 

In  a  number  of  states  separate  ballots  are  provided  for  county, 
city,  township,  judicial,  or  school  officers  (or  for  one  or  more  of 
these  classes)  when  the  latter  are  elected  at  the  same  time  with 
state  and  national  officers.  This  has  been  done  in  several  states 
from  the  very  start  ;  for  example,  in  Indiana  and  Oklahoma. 
The  practice  was  fairly  common  in  the  United  States,  prior  to  the 
introduction  of  the  AustraHan  system,  of  requiring  separate 
ballots  for  different  ofiices,  or  groups  of  offices,  and  an  illustration 
of  this  may  still  be  found  in  the  laws  of  North  and  South  CaroHna. 
When  it  is  adopted  in  connection  with  the  Australian  system, 
however,  the  number  of  separate  ballots  is  seldom  as  large  as 
under  the  earher  American  laws,  when  it  sometimes  was  as  high  as 
seven  or  eight.     In  recent  years  this  practice  has  spread  to  a 

^  The  twenty-seven  states  belonging  at  present  to  this  group  are  Alabama, 
Arizona,  California,  Connecticut,  Delaware,  Idaho,  Illinois,  Indiana,  Kan- 
sas, Kentuc^cy,  Louisiana,  Maine,  Michigan,  New  Hampshire,  New  York, 
North  Carolina  (one  county).  North  Dakota,  Ohio,  Rhode  Island,  South 
Dakota,  Texas,  Utah,  Vermont,  Washington,  West  Virginia,  Wisconsin,  and 
Wyoming. 

2  California,  Colorado,  Minnesota,  Montana,  Nebraska,  North  Dakota, 
Pennsylvania,  Utah,  and  Washington. 

'  Colorado,  Nebraska,  and  Pennsylvania. 

4  Iowa  and  Montana. 


682  American  Government  and  Politics 

number  of  states,  and  is  now  in  force  in  at  least  six  states  besides 
the  two  above  mentioned.^  In  a  number  of  others  constitutional 
amendments  and  questions  submitted  to  popular  vote  are  printed 
on  separate  ballots.  The  separate  ballots  for  local  or  other  can- 
didates are  often  of  a  different  form  from  the  general  state  ballot, 
and  usually  of  a  different  color. 

One  other  point  in  regard  to  the  form  of  ballot  has  had  such 
an  important  practical  bearing  on  the  working  of  the  several 
ballot  laws  that  it  deserves  special  mention.  It  is  provided  in 
nearly  all  the  states  which  use  the  "Massachusetts,"  or  the 
modified  "Massachusetts,"  form  of  ballot  that  the  name  of  each 
candidate  shall  be  printed  on  the  ballot  in  only  one  place.  In 
addition,  however,  it  is  almost  always  provided  (except  where  no 
party  designations  of  any  sort  are  allowed)  that  each  candidate's 
name  shall  be  followed  on  the  ballot  by  the  name  of  the  party 
which  nominated  him,  or,  if  he  has  been  nominated  for  the  same 
office  by  two  or  more  parties  or  independent  groups,  by  the  names 
of  all  the  parties  or  groups  which  have  so  nominated  him.  This 
arrangement  is  eminently  fair  to  all  parties  and,  since  one  person 
could  hardly  be  allowed  to  run  for  several  offices  at  the  same  time, 
is  a  logical  part  of  the  "Massachusetts"  system. 

In  1 89 1,  however,  the  provision  that  the  name  of  any  candi- 
date should  appear  in  but  one  place  on  the  ballot  was  adopted  in 
Indiana.  This  was  the  first  time  that  this  restriction  had  been 
apphed  in  connection  with  a  "party  column"  form  of  ballot, 
but  from  this  time  on  it  was  adopted  by  one  after  another  of  the 
"party  column"  states,  and  it  is  at  present  in  force  in  thirteen 
states  of  class  one,^  and  in  both  the  states  belonging  to  class  two.^ 
Its  effect,  when  combined  with  the  "party  column"  arrangement, 
is  to  render  the  "fusion"  of  two  or  more  parties  very  difficult. 
Each  candidate  whom  the  several  parties  combine  to  nominate 
can  have  his  name  printed,  under  this  system,  in  only  one  column. 
In  the  other  columns  the  most  that  can  be  done  is  to  leave  a 
blank  space  under  the  title  of  the  office  in  question.     In  this  case 

^  These  states  are  California,  Idaho,  Kansas,  Ohio,  Vermont,  and  Wis- 
consin. 

2  These  are  Idaho,  Illinois,  Kansas,  Kentucky,  Louisiana,  Michigan, 
North  Dakota,  South  Dakota,  Texas,  Vermont,  Washington,  Wisconsin,  and 
Wyoming. 

3  These  are  Iowa  and  Montana. 


State  and  Local  Politics  683 

all  straight  votes  for  these  parties  are  blank,  as  far  as  this  office 
is  concerned,  unless  the  voter  writes  in  the  name  of  the  fusion 
candidate  —  a  thing  which  in  actual  practice  few  persons  will 
take  the  trouble  to  do.^  For  this  reason  a  joint,  non-partisan 
judicial  nomination,  or  a  "fusion"  municipal  campaign  where 
one  of  the  parties  has  combined  with  one  or  more  independent 
groups  to  oust  the  dominant  machine,  stands  very  much  less 
chance  of  succeeding  where  the  restriction  is  in  force  than  where 
a  candidate's  name  can  appear  in  the  column  of  every  party  that 
nominated  him.  Governor  Hughes,  in  vetoing  a  bill  which, 
if  passed,  would  have  introduced  this  rule  in  New  York  State, 
said:  "This  measure  is  wholly  indefensible  ...  as  long  as  we 
retain  the  present  form  of  ballot  with  its  party  columns,  it  would 
be  a  grave  injustice  to  prohibit  a  candidate's  name  from  appear- 
ing in  more  than  one  column."  There  is  something  to  be  said, 
however,  in  favor  of  the  rule.  Where  it  does  not  exist  minor 
parties  are  often  formed  merely  for  the  purpose  of  selling  out 
their  columns  on  the  ballot  to  one  of  the  larger  parties  for  what- 
ever they  can  get  in  exchange.  Even  if  the  minor  parties  or 
groups  are  entirely  genuine,  their  multipUcation  results  in  a 
monstrous  and  unwieldy  ballot  (sometimes  with  nineteen  columns, 
such  as  was  necessary  in  New  York  City  in  1909).  The  logical 
remedy,  as  Governor  Hughes  pointed  out  in  the  veto  message 
above  cited,  is  the  adoption  of  the  "Massachusetts"  arrange- 
ment. Until  this  has  been  accompUshed,  however,  the  advan- 
tages which  accrue  to  the  cause  of  non-partisanship  from  an  easy 
method  of  fusion  far  outweigh  the  disadvantages  due  to  the 
absence  of  the  limitation  in  question,  especially  in  the  case  of 
large  cities.  These  considerations  led  to  the  repeal  of  a  provision 
of  this  sort  in  Ohio  in  1906.^ 

It  would  be  interesting  to  trace  the  history  of  other  points 
relative  to  the  form  of  the  ballot  and  the  rules  for  marking,  such 
as  the  provision,-  usually  held  by  the  courts  to  be  required  under 
the  state  constitutions,  that  the  voter  may  write  in  the  name 
of  any  person  whose  name  is  not  printed  on  the  ballot  as  a  can- 
didate for  any  office,  the  use  of  "pasters"  in  marking  the  ballot 
and  the  reasons  why  this  has  generally  been  aboHshed,  and 

^  Todd  V.  Board  of  Election  Commissioners,  104  Michigan,  474;  L.  R.  A., 
Vol.  XXIX,  p.  330;  "McCrary  on  Elections,"  4th  ed.,  p.  505. 

'^  A  similar  provision  was  declared  unconstitutional  in  California  in  1902. 


084  American  Government  and  Politics 

finally,  certain  minor,  but  nevertheless  important,  details  in  regard 
to  the  printing  and  arrangement  of  the  ballot.  It  would  be  even 
more  interesting  to  discuss  the  actual  working  of  the  various 
forms  of  ballot  and  the  practical  reasons  for  the  numerous  changes 
which  have  been  made,^  but  any  attempt  to  treat  these  subjects 
satisfactorily  would  require  too  much  space. 

Besides  the  various  changes  noted  in  the  form  of  the  ballot  and 
the  rules  for  marking,  the  original  Australian  ballot  laws  have  been 
considerably  altered  and  elaborated  in  other  directions.  The 
procedure  for  placing  the  names  of  candidates  on  the  ballot  has 
been  constantly  amended,  and  most  of  the  provisions  in  regard 
to  the  form  of  nomination  certificates  and  petitions,  the  method 
of  obtaining  signatures  to  the  latter,  the  time  and  place  of  filing, 
the  choice  of  the  party  emblem  (where  one  is  used),  the  filUng 
of  vacancies  when  candidates  die,  resign,  or  are  found  to  be  dis- 
quaHfied,  the  settlement  of  disputes  as  to  the  "regularity"  of 
two  or  more  contesting  claimants  for  a  party  nomination,  the 
certification  of  nominations  by  the  officers  with  whom  they  have 
been  filed  to  the  officers  whose  duty  it  is  to  supervise  the  actual 
printing  of  the  ballots,  etc.,  —  have  been  worked  out  and  stated 
in  far  greater  detail  than  was  considered  necessary  originally. 

Another  portion  of  the  several  laws  which  has  undergone  more 
or  less  amendment  is  that  which  deals  with  the  actual  furnishing 
of  ballots  and  other  stationery,  the  equipment  of  the  polling 
places,  and  the  preparations  for  the  holding  of  an  election.  In 
a  number  of  states  ampler  provisions  than  formerly  have  been 
adopted  for  the  publication,  prior  to  an  election,  of  the  lists  of 
candidates  of  the  several  parties,  and  of  the  constitutional 
amendments  and  other  measures,  if  any,  which  are  to  be  voted 
on.  The  provisions  regulating  the  distribution  of  the  ballots  to 
the  several  polling  places  have,  in  most  cases,  been  made  more 
specific,  and  the  procedure  to  be  followed  in  case  the  official 
ballots  are  lost,  stolen,  or  destroyed  has  been  more  carefully 
defined. 

Finally,  in  many  of  the  states,  the  rules  for  the  handling  of 
the  ballots  on  election  day  and  the  general  conduct  of  the  elec- 
tion, including  the  counting  of  the  vote,  have  been  from  time  to 
time  amended  with  a  view  to  the  securing  of  greater  secrecy  and 

^  Certain  sides  of  this  question  were  very  suggestively  treated  by  the  late 
Philip  Loring  Allen  in  the  article  above  cited. 


State  and  Local  Politics  685 

the  more  effectual  prevention  of  fraud.  The  development  in 
this  direction  has  been  particularly  noticeable  in  those  states 
where  organized  effort  to  win  elections  by  fraudulent  means  has 
been  carried  to  the  highest  point  of  efficiency.  Just  as  in  the 
familiar  contest  in  the  field  of  naval  construction  between  high- 
power  projectiles  and  still  more  powerful  defensive  armor,  so  every 
advance  in  the  direction  of  greater  rigor  and  minuteness  in  the 
provisions  of  the  election  law  has  been  met  by  a  more  than  cor- 
responding systematization  and  perfection  of  the  methods  for 
evading  such  provisions.  This  process  is  particularly  interest- 
ing to  trace  in  New  York  state  (which  has,  on  the  whole,  the  most 
complete  and  highly  developed  election  law  of  any  state  in  the 
Union,  —  though  those  of  Massachusetts  and  California  are  very 
close  rivals,  and  on  certain  specific  points  both  they  and  those  of 
other  states  are  in  advance  of  the  New  York  law).  As  any  de- 
scription of  the  development  of  the  various  statutes  along  this 
line  would  necessarily  be  a  lengthy  matter,  and  as  it  would  in- 
volve a  discussion  of  other  parts  of  the  election  law  than  that 
which  is  directly  affected  by  the  Australian  ballot  system  — 
for  example,  the  subject  of  registration  —  it  cannot  here  be 
attempted.  In  general,  it  may  be  said,  however,  that  the  de- 
velopment of  ballot  laws  has  been  carried  farthest  in  the  larger 
states,  especially  in  those  which  contain  great  cities  and  in 
which  the  parties  are  most  evenly  balanced.  In  such  states  as 
Florida,  Mississippi,  Nevada,  and  Maine  there  have  been  scarcely 
any  changes  since  the  Australian  system  was  first  adopted. 


Primary  Election  Laws  ^ 

State  legislation  now  goes  behind  the  regular  official  elections 
and  controls  to  a  greater  or  less  extent  the  structure  and  opera- 
tions of  the  several  parties.^ 

I.  At  the  outset,  the  legislature  must  determine  the  character 
of  the  political  associations  which  are  to  be  brought  within  the 
purview  of  the  law,  for  groups  with  sUght  numerical  strength  or 
formed  for  only  quasi-political  purposes  are  obviously  outside 

^  See  Merriam,  Primary  Elections.    Professor  E.  C.  Meyer  is  revising  his 
Nominating  Elections  for  early  publication. 
2  See  above,  p.  142. 


686  American  Government  and  Politics 

the  scope  of  primary  legislation.  In  meeting  this  problem  of 
definition,  two  rules  have  been  devised.  It  is  sometimes  the 
practice  to  extend  the  application  of  the  law  only  to  those  poHt- 
ical  associations  which  cast  a  fixed  number  of  votes  for  some 
specified  candidates  at  the  preceding  state  election.  New 
York,  for  example,  places  the  minimum  at  ten  thousand  votes 
for  governor,  and  specially  exempts  from  the  operation  of  the  law 
organizations  and  associations  of  citizens  for  the  election  of  city 
ofiicers,  providing  that  membership  in  such  an  association  shall 
not  prevent  the  elector  from  enroUing  with  and  acting  as  a  mem- 
ber of  a  political  party.  The  more  frequent  practice,  adopted 
by  the  most  recent  statutes,  is  to  determine  upon  some  percent- 
age of  the  entire  vote  which  any  political  organization  must  cast 
in  order  to  bring  it  within  the  view  of  the  law.  The  Iowa  statute 
of  1907  includes  in  the  term  "political  party"  any  organization 
which  at  the  last  preceding  general  election  cast  for  its  candidate 
for  governor  at  least  two  per  cent  of  the  total  vote  cast  at  that 
election.  Oregon  defines  a  poUtical  party  as  an  affiliation  of 
electors  representing  a  political  organization  which  at  the  pre- 
ceding general  election  polled  for  its  candidate  for  Congress  at 
least  twenty-five  per  cent  of  the  entire  vote  cast  for  that  office 
in  the  State.     (Law  of  1905.) 

II.  After  the  definition  of  what  organizations  shall  come 
within  the  purview  of  the  law,  it  is  next  imperative  that  some 
precise  and  regular  mode  should  be  provided  for  determining 
who  are  entitled  to  membership  and  voting  rights  within  the  party. 
Otherwise  it  would  be  impossible  for  the  primary  law  to  attain 
its  fundamental  purpose  of  securing  the  expression  of  the  popular 
will  on  the  composition  of  the  committees  and  conventions,  the 
nomination  of  candidates,  and  the  drafting  of  the  platform. 
This  principle  is  enunciated  in  the  preamble  to  the  Oregon  law: 
"Every  poHtical  party  and  every  volunteer  political  organiza- 
tion has  the  same  right  to  be  protected  from  the  interference  of 
persons  who  are  not  identified  with  it  as  its  known  and  pubHcly 
avowed  members  that  the  government  of  the  state  has  to  pro- 
tect itself  from  the  interference  of  persons  who  are  not  known 
and  registered  as  its  electors.  It  is  as  great  a  wrong  to  the  people, 
as  well  as  to  the  members  of  a  political  party,  for  any  one  who  is 
not  known  to  be  one  of  its  members  to  vote  or  take  any  part  at 
any  election  or  other  proceedings  of  such  political  party,  as  it  is 


State  and  Local  Politics  687 

for  one  who  is  not  a  qualified  and  registered  elector  to  vote  at 
any  state  election  or  to  take  part  in  the  business  of  the  state." 
This  seems  axiomatic;  but  obviously  it  is  difiicult  to  prescribe 
the  conditions  of  party  allegiance  without  at  once  preventing 
that  independence  in  voting  which  is  the  hope  of  decent  politics. 
If  only  known  party  voters  are  to  attend  the  primaries,  what  be- 
comes of  the  secret  ballot  at  elections  —  that  boon  which  it  took 
so  many  years  to  secure?  In  the  midst  of  a  great  diversity  of 
practices  in  this  matter  of  providing  a  party  allegiance  test, 
four  general  methods  are  discernible:  ofiicial  enrolment  in  the 
party  by  secret  or  open  process;  personal  declaration  at  the 
primary;  investment  of  the  right  to  determine  the  test  in  party 
officials;  and  the  heroic  device  of  abandoning  the  test  altogether 
by  the  estabhshment  of  secret  primaries.  ^ 

I.  The  first  of  these  methods  has  been  adopted  in  New  York, 
In  the  cities  and  villages  where  the  personal  enrolment  law 
applies,  the  voter,  on  registering  for  the  coming  election,  receives 
a  blank  which  he  must  fill  out  if  he  intends  to  participate 
in  the  primary  elections  of  any  party.  He  then  goes  into 
a  booth  where  he  indicates  by  a  mark  under  the  emblem  the 
party  with  which  he  intends  to  affiliate,  and  at  the  same  time  sub- 
scribes to  a  declaration  running  as  follows:  "I  am  in  general 
sympathy  with  the  principles  of  the  party  which  I  have  desig- 
nated by  my  mark  hereunder;  it  is  my  intention  to  support 
generally  at  the  next  general  election,  state  or  national,  the  nomi- 
nees of  such  party  for  state  and  national  offices;  and  I  have  not 
enrolled  with  or  participated  in  any  primary  election  or  con- 
vention of  any  other  party  since  the  first  day  of  last  year."  The 
enrolment  blanks  so  filled  out  are  placed  in  sealed  envelopes  and 
deposited  in  a  special  box;  a  week  after  the  regular  election 
the  seals  are  broken  and  the  Usts  of  each  party  made  up  from  the 
declarations.  Judicial  process  may  be  invoked  for  the  cancella- 
tion of  the  names  of  fraudulent  voters  and  the  names  of  voters 
who  have  died  or  moved  out  of  the  district  before  the  ensuing 
primary.  The  chief  objection  to  this  system  is  that  urged 
against  viva  voce  voting  at  elections;  namely,  that  it  makes 


^  On  this  problem,  see  a  valuable  article  by  Professor  Charles  E.  Merriam 
in  the  Proceedings  of  the  American  Political  Science  Association,  1907,  pp. 
179  ff. 


688  American  Government  and  Politics 

public  the  party  affiliation  of  every  voter  who  enrolls,  and  makes 
him  liable  to  the  pressures  incident  to  such  pubHcity.  ^ 

2.  The  second  test  of  party  allegiance,  that  is,  personal  decla- 
ration at  the  primary,  is  one  quite  generally  applied,  but  it  tends 
to  approximate  the  New  York  plan  owing  to  the  frequent  adoption 
of  an  official  register  based  on  such  declarations.  According 
to  this  scheme,  the  voter  at  the  primary  asks  for  and  receives  the 
ballot  of  the  party  in  whose  nominations  he  wishes  to  take  part, 
and,  unless  challenged,  he  deposits  the  ballot  in  the  box  of  the 
party  he  has  chosen;  if  challenged  he  takes  an  oath  to  the  effect 
that  he  is  a  member  of  that  party,  has  supported  it  generally 
at  the  last  election,  and  intends  to  vote  for  at  least  a  majority 
of  the  candidates  at  the  coming  election. 

3.  The  third  method  —  leaving  the  imposition  of  the  test  to  the 
party  officials  operating  under  organization  rules  —  is  prevalent 
in  the  South  where,  for  well-known  reasons,  the  dominant  party 
has  desired  a  generous  freedom  in  this  respect. 

4.  Wisconsin  has  solved  the  problem  of  the  allegiance  test  by 
a  heroic  provision:  each  voter  at  the  primary  is  given  ballots  of 
all  the  parties;  the  ballots  are  officially  prepared  and  all  aUke 
in  form  and  color  and  are  in  a  single  sheet  separated  by  per- 
forated hnes;  on  each  ballot  the  names  of  the  several  party  can- 
didates are  arranged  in  alphabetical  order  ^  under  the  titles  of  the 
offices  to  which  they  seek  the  nomination ;  the  voter  separates  from 
the  group  of  ballots  the  ballot  of  the  party  for  which  he  wishes 
to  vote,  marks  it,  folds  it,  and  then  deposits  it  in  the  regular  box. 
All  the  other  papers  he  puts  in  a  separate  box  for  the  blanks, 
which  are  destroyed  immediately  after  the  canvass.  Thus 
absolute  secrecy  is  preserved.^ 

^  Another  disadvantage  of  the  scheme  of  enrolment  and  in  fact  of  all 
tests  for  party  membership  is  the  difficulty  it  places  in  the  way  of  separating 
state  and  national  from  local  issues. 

^  Provision  was  made  in  1909  for  "  rotating  "  the  names  of  the  candidates 
so  as  not  to  give  the  names  beginning  with  A,  B,  C,  etc.,  for  example,  an 
advantage  over  those  beginning  with  S,  T,  U,  etc. 

^  The  Minnesota  primary  law  of  1899,  which  was  first  made  applicable  to 
the  single  city  of  Minneapolis,  also  provided  for  secret  ballot,  and  the  first 
trial  resulted  in  a  protest  against  the  secret  feature  of  the  statute.  A  Re- 
publican candidate  for  mayor  was  nominated  against  the  wishes  of  the 
organization  and  the  cry  immediately  followed  that  "the  Democrats  did  it." 
When  the  legislature  met  again,  it  reestablished  the  old  requirement  of  a 


State  and  Local  Politics  689 

III.  Having  defined  the  type  of  organization  which  shall  be 
deemed  a  party  and  laid  down  the  rules  determining  membership 
in  the  party,  legislatures  are  next  compelled  to  provide  for  safe- 
guarding the  balloting  at  primaries,  and  in  this  connection  they 
have  regulated  the  dates  of  primaries,  polling  places,  size  and 
shape  of  ballots,  the  conduct  of  the  balloting,  the  count,  and  the 
payment  of  the  expenses.  The  principles  now  accepted  in  this 
field  of  primary  legislation  are  the  oldest  and  best  known,  so  that 
they  need  little  more  than  mention  here.  There  is  a  uniform 
tendency  to  fLx  the  holding  of  all  primary  elections  of  all  parties 
on  the  same  day  and  at  the  same  place  for  all  territorial  divisions 
coming  under  the  provisions  of  the  law;  but  this  is  not  univer- 
sally adopted;  some  states,  for  instance,  forbid  two  parties 
to  hold  their  caucuses  on  the  same  day,  leaving  the  matter 
otherwise  to  the  determination  of  the  committees,  subject  to 
certain  Umits  as  to  time.  While  fixing  uniform  dates  for 
primaries.  New  York  separates  the  polhng  places  of  parties  by 
providing  that  one  polHng  place  shall  be  furnished  in  each  dis- 
trict for  the  party  casting  the  highest  number  of  votes  at  the  last 
gubernatorial  election,  and  another  place  for  all  other  parties. 
There  is  also  a  tendency  to  require  an  official  ballot  for  all  parties;  ^ 
but  New  York  allows  any  person  to  provide  ballots  subject  to 
the  regulations  of  the  custodian  of  primary  elections  as  to  size, 
color,  weight,  and  texture  of  the  paper.  It  is  also  a  generally 
accepted  principle  that  the  primaries  should  be  conducted  by 
regular  officials  according  to  minute  provisions  as  to  hours  of 
opening  and  closing,  and  counting  the  ballots;  and  finally  that 
the  expenses  should  be  borne  by  the  same  governmental  author- 
ity that  bears  the  regular  election  expenses. 

IV.  The  definition  of  party,  the  provision  of  an  allegiance 
test,  and  the  protection  of  the  ballot  at  the  primary  are  but  the 
preliminaries  to  the  control  of  party  organization  and  operations. 
The  dominating  element  in  the  state  party  organization  is,  of 
course,  the  central  committee  (including  the  chairman),  who  have 
charge  of  marshalling  the  party  hosts  in  campaigns  and  have 

declaration  of  allegiance  on  the  part  of  the  party  voter  and  at  the  same  time 
extended  the  provisions  of  the  law  to  other  parts  of  the  state.     Review  of 
Reviews,  Vol.  XXIV,  pp.  465  ff.,  October,   1901;   A.  L.  Mearkle,  "The 
Minnesota  Election  Law," 
^  Printed  at  public  expense. 
2  Y 


690  American  Government  and  Politics 


1 


more  or  less  to  say,  according  to  circumstances,  about  the  con- 
duct of  party  members  in  legislatures  and  official  places.  In 
many  states  this  important  body  has  taken  advantage  of  the 
rich  opportunities  offered  to  build  up  a  centralized  machine,  and 
accordingly  our  legislatures  have  sought  to  bring  it  under  control 
and  fix  its  responsibility  somewhere.  In  determining  the  com- 
position and  selection  of  the  state  committee,  the  lawmakers 
have  adopted  a  bcAvildering  variety  of  expedients  which  do  not 
reveal  any  positive  tendencies  beyond  a  determination  to  free 
the  party  from  the  dominance  of  a  machine  forced  upon  it  by 
scheming  minorities.  These  devices  are  illustrated  by  the  types 
of  regulation  described  below. 

1.  The  New  York  law,  full  as  it  is  in  many  respects,  does  not 
enter  this  sphere  of  party  organization;  but  leaves  each  party 
to  follow  its  own  rules  in  the  constitution  of  its  state  com- 
mittee. 

2.  The  Wisconsin  law  of  1907  provides  a  rather  unique 
method  of  choosing  the  state  chairman  and  committee.  It 
follows  the  Republican  practice  in  New  York  of  using  the  con- 
gressional district  as  the  unit  for  apportionment,  but  allows 
each  one  at  least  two  members  on  the  state  committee.  It 
provides  that  at  twelve  o'clock  noon  on  a  specified  day,  the 
candidates  for  the  various  state  offices  and  for  senate  and  as- 
sembly nominated  by  each  political  party  at  the  primary  and  the 
senators  of  such  party,  whose  terms  of  office  extend  beyond  the 
first  Monday  in  January  of  the  year  next  ensuing,  shall  meet  at 
the  state  capitol,  and  after  formulating  the  platform  of  the  party, 
shall  elect  by  ballot  a  central  committee  of  at  least  two  members 
from  each  congressional  district  and  a  chairman  of  the  said  com- 
mittee. 

3.  The  most  democratic  method  of  selecting  the  state  com- 
mittee is  provided  by  the  Illinois  law  which  went  into  effect  on 
July  1, 1908 — later  declared  unconstitutional.^  The  state  central 
committee  shall  be  composed  of  one  member  from  each  congres- 
sional district  in  the  state  chosen  for  a  term  of  two  years  by  the 
party  voters  at  a  regular  primary.  "The  state  central  commit- 
tee" runs  the  law,  that  there  may  be  no  mistake,  "shall  be  com- 
posed of  members  elected  from  the  several  congressional  dis- 
tricts of  the  state  as  herein  provided  and  of  no  other  person  or 

^  This  portion  stands  in  the  reenactment  of  1910. 


State  and  Local  Politics  691 

persons  whomsoever."  Within  thirty  days  after  their  election 
the  committee  must  meet  and  select  the  state  chairman  and  such 
other  officers  as  may  be  deemed  necessary  to  the  conduct  of  party 
business. 

4.  In  constituting  the  state  committee,  Massachusetts  has 
provided  a  mixture  of  direct  nomination  for  populous  centres 
and  selection  by  local  convention  for  the  other  districts.  The 
law  of  this  state  requires  each  party  to  elect  a  state  committee 
annually;  the  rule  of  apportionment,  similar  to  that  of  the  Demo- 
cratic party  in  New  York,  is  that  there  shall  be  at  least  one  mem- 
ber of  the  committee  for  each  senatorial  district;  the  selection  of 
the  members  of  the  state  committee  is  confided  to  party  conven- 
tions in  each  senatorial  district,  except  the  Suffolk,  first  Hamp- 
den, third  Middlesex  districts,  and  certain  other  districts  where 
the  direct  primary  is  required.^ 

5.  The  Iowa  law  of  1907  (section  27)  provides  that  the  central 
committee  shall  consist  of  not  less  than  one  member  for  each 
congressional  district  and  shall  be  chosen  in  the  state  convention 
of  the  party  regularly  organized  under  the  law  of  the  state; 
but  with  the  internal  structure  of  the  committee  Iowa  does  not 
interfere:  "The  state  central  committee  elected  at  said  state 
convention  may  organize  at  pleasure  for  political  work  as  is  usual 
and  customary  with  such  committees,  and  shall  continue  to  act 
until  succeeded  by  another  committee  duly  selected." 

Descending  from  the  state  party  organization  to  the  great  basic 
unit  in  the  state  machinery  —  the  county  organization  ^  —  we 
discover  a  more  uniform  tendency  on  the  part  of  the  state  legis- 
atures  to  regulate  even  to  the  most  minute  particulars.  This, 
of  course,  is  what  was  to  have  been  expected,  for  it  was  formerly 
believed  that,  by  the  establishment  of  uniformity,  regularity, 
and  democratic  control  in  the  lower  ranges  of  party  opera- 
tions, the  representative  and  responsible  character  of  the  upper 
ranges  would  be  secured.  New  York  has  provided  that  each 
Darty  shall  have  a  general  committee  for  each  county,  chosen  in 
cities  of  the  first  class  by  primary  elections,  and  in  other  cities 
and  villages  to  which  the  primary  law  is  applicable  by  primaries, 
conventions,  or  other  committees,  as  the  rules  of  the  party  may 

*  Massachusetts  Laws  Relating  to  Elections,  IQ07  (ofl&cial  publication),  pp. 
38,  148,  and  amendments. 

^  Except,  of  course,  in  New  England. 


692  American  Government  and  Politics 

determine.  The  members  of  the  committee  must  be  apportioned 
as  among  the  units  of  representation  as  nearly  as  possible  upon  a 
basis  of  the  party  vote  for  governor;  the  time  at  which  the  com- 
mittee must  take  office  is  determined  by  party  rule  except  that 
it  must  not  be  later  than  the  first  day  of  January  succeeding  the 
election;  the  committee  may  make  the  rules  of  the  party  subject  to 
the  limitations  imposed  by  the  law;  it  must  specify  the  names  and 
addresses  of  its  chairman  and  secretary  within  three  days  after 
its  organization  to  the  custodian  of  primary  records  and  file 
with  the  same  official  a  transcript  of  the  rules  and  regulations 
of  the  party  for  the  county  within  the  same  period  after  their 
adoption.  It  is  thus  evident  that  the  New  York  law  is  designed 
to  afford  popular  election  of  the  controlling  county  organization 
and  at  the  same  time  secure  a  definite  body  of  rules  on  details 
for  the  guidance  of  the  courts  and  other  authorities,  while  leaving 
the  party  a  large  autonomy  in  making  them.  But,  as  every  one 
knows,  the  county  committee,  in  New  York  county,  on  account 
of  its  unwieldy  size  as  now  constituted,  is  of  slight  importance, 
power  having  passed,  or  rather  continued  to  exist,  in  the  smaller 
executive  committee. 

In  constituting  the  county  committee,  the  law  of  Wisconsin 
follows  a  practice  quite  commonly  accepted  by  party  custom;  it 
integrates  the  official  representatives  from  the  lower  subdivisions 
of  the  county  by  providing  that  the  county  committee  shall  con- 
sist (except  in  certain  populous  counties)  of  the  several 
committees  from  each  election  precinct  in  the  county.  The 
committee  so  constituted  elects  its  own  officers  and  provides 
its  own  rules.  Although  the  Wisconsin  law  is  scarcely  more 
precise  in  its  requirements  than  the  regulations  in  New  York, 
it  must  be  remembered  that  the  practice  of  nominating 
almost  all  candidates  by  direct  ballot  has  stripped  the  county 
organization  of  its  most  important  powers  in  connection  with  the 
assemblage  and  manipulation  of  nominating  conventions.  The 
Iowa  law  requires  the  election  of  the  county  committee  by  ballot, 
one  member  being  chosen  from  each  election  precinct  by  the 
voters  of  the  party.*  In  Kansas,  the  precinct  committeemen, 
one  from  each  precinct,  chosen  by  the  party  voters,  constitute 
ex  officio  the  county  committee. 

V.  Our  state  legislatures  have  not  stopped  with  attempting 
^  Primary  Election  Law,  approved  April  4,  1907,  section  25. 


State  and  Local  Politics  693 

to  secure  democratic  election  of  the  regular  party  organization. 
Realizing  from  experience  and  common  knowledge  the  extent  to 
which  conventions  are  dominated  by  party  leaders,  and  candi- 
dates are  nominated  at  their  behest,  our  lawmakers  have  devised 
nomination  by  a  "direct  primary"  which  is  really  nomination 
by  an  election  within  the  party.  In  this  system  the  state  fur- 
nishes to  each  party  an  official  ballot.  A  member  of  a  party 
who  wishes  to  become  a  candidate  for  any  office  to  which  the  law 
appHes  may  have  his  name  placed  upon  this  official  ballot  of  his 
party  by  securing  a  certain  number  of  signatures  to  a  petition. 
At  the  primary,  therefore,  each  party  member  passes  under  re- 
view the  several  aspirants  for  nomination  whose  names  appear 
on  the  ballot,  and  selects  one  whom  he  beHeves  to  represent  best 
the  standards  and  policy  of  his  party.  Such,  at  least,  is  the  theory 
of  the  system. 

The  laws  on  this  subject  fall  into  four  general  classes:  those 
which  provide  for  (i)  nomination  of  delegates  to  conventions  by 
ballot  at  the  primary  and  permissive  extension  of  the  principle 
to  certain  candidates  for  office;  (2)  obligatory  nomination  of 
important  local  officers  by  ballot  and  the  retention  of  the  con- 
vention system  for  state  officers;  (3)  obligatory  direct  nomina- 
tion of  United  States  Senators,  and  all  officers,  except  minor 
local  officers,  by  secret  ballot;  and  (4)  direct  primary  nomina- 
tion for  all  important  state  and  local  officers,  including  United 
States  senators,  supplemented  by  the  convention  action  in  case 
any  candidate  does  not  receive  the  requisite  percentage  of  votes; 
(5)  nomination  of  local  officers  by  ballot  and  permissive  instruc- 
tion of  candidates  for  the  office  of  delegate  to  the  state  convention. 

I.  A  poor  example  of  the  first  of  these —  the  optional 
method — is  afforded  by  the  New  York  law.  In  case  the  general 
committee  representing  a  party  in  any  city  or  village  to  which  the 
act  applies,  or  in  any  county  wholly  within  such  city,  or  in  any 
borough  of  such  a  city,  adopts  by  a  majority  vote  a  rule  that  the 
nomination  of  that  party's  candidates  for  specified  public  offices 
to  be  filled  wholly  from  such  subdivision  shall  be  made  at  the 
primary  elections  of  the  party,  then  while  the  rule  is  in  force,  the 
nominations  for  the  specified  public  offices  shall  be  made  by  the 
enrolled  members  of  the  party  at  the  regular  primary  elections. 
The  merit  claimed  for  this  permissive  law  is  that  it  places  freely 
within  the  power  of  a  committee  selected  by  direct  party  vote 


694  American  Government  and  Politics 

the  right  to  determine  whether  candidates  for  certain  offices 
shall  be  nominated  by  the  popular  vote  of  the  party;  but  against 
this  contention  it  is  urged  that  the  machine  once  in  power  cannot 
be  broken  by  party  vote,  and  the  aid  of  the  legislature  must  there- 
fore be  invoked.  The  New  York  law  applies  only  to  local 
offices  and  is  really  a  dead  letter.  In  a  large  number  of 
states/  however,  where  the  optional  principle  is  in  force,  it  has 
been  applied  to  nearly  all  state  and  local  officers  and  to  the 
United  States  Senator. 

2.  The  second  type  of  law  —  providing  direct  nominations 
for  local  offices  —  is  to  be  found  in  Indiana,  Massachu- 
setts, Minnesota,  Ohio,  and  New  Jersey.  The  Minnesota 
law  provides  for  an  election  of  party  nominees  to  be  held 
in  each  election  district  "for  the  selection  of  party  candi- 
dates for  all  elective  offices,  except  offices  of  towns,  villages, 
and  cities  of  the  fourth  class,  and  state  offices,  and  members  of 
school,  park,  and  library  boards  in  cities  having  less  than  one 
hundred  thousand  inhabitants."  Candidates  whose  nomina- 
tions are  not  required  to  be  made  by  primary  election  may  be 
nominated  by  a  delegate  convention  called  for  that  purpose. 

3.  The  third  type  of  primary  law  ^  — providing  for  direct  nomina- 
tions for  United  States  Senator  and  nearly  all  officers — is  exempli- 
fied in  the  Wisconsin  law  of  1907.  All  candidates  for  elective 
offices  must  be  nominated  at  the  primaries  with  the  exceptions 
provided  by  the  limits  on  the  extension  of  the  act.  That  is, 
the  act  does  not  apply  to  special  elections  to  fill  vacancies,  to 
the  office  of  state  superintendent,  to  presidential  electors,  to 
county  and  district  superintendents  of  schools,  to  town,  village, 
and  district  school  officers,  nor  to  judicial  officers,  excepting  pohce 
justices  and  justices  of  the  peace  in  cities  of  the  first,  second,  and 
third  class.^    It  is   expressly  provided  that  party  candidates 

1  The  following  states  have  direct  nominations  under  optional  laws  and 
party  rules:  Alabama,  Arkansas,  Florida,  Georgia,  Kentucky,  Maryland, 
South  Carolina,  Virginia,  and  parts  of  North  Carolina. 

2  The  following  states  now  have  such  laws:  California,  Idaho,  Illinois, 
Iowa,  Kansas,  Louisiana,  Michigan,  Mississippi,  Missouri,  Nebraska,  Nevada, 
New  Hampshire,  North  Dakota,  Oklahoma,  Oregon,  South  Dakota,  Ten- 
nessee, Texas,  Washington,  Wisconsin,  Arizona. 

3  No  primary  election  shall  be  held  in  cities  of  the  fourth  class  for  nomi- 
nation of  municipal  officers  unless  a  petition  asking  for  such  primary  election 
shall  be  filed  with  the  signatures  of  twenty-five  per  cent  of  the  voters  of  such  city. 


State  and  Local  Politics  695 

for  the  office  of  United  States  Senator  shall  be  nominated  in  accord- 
ance with  the  process  devised  for  the  nominations  to  state  offices. 

4.  Iowa,  in  the  election  law  of  1907,  sought  to  obviate  the 
defects  in  ''pluraHty"  nominations  by  a  rather  cumbersome 
set  of  provisions  which  taken  collectively  may  be  said  to  con- 
stitute the  fourth  type  of  direct  nomination  law.  Section  i 
of  this  act  provides  that  the  candidates  of  political  parties  for  all 
offices  which  under  the  law  are  to  be  filled  by  the  direct  vote 
of  the  voters  of  the  state  at  the  general  election  in  November 
(excepting  candidates  for. the  office  of  judge  of  the  supreme  court, 
district  and  superior  courts,  and  including  candidates  for  the 
office  of  senator  in  the  Congress  of  the  United  States  and  for  the 
office  of  presidential  elector),  shall  be  nominated  by  primary 
election.  The  aspirant  of  each  poHtical  party  for  each  office 
to  be  filled  by  the  voters  of  any  subdivision  of  the  county,  who 
receives  the  largest  number  of  votes  shall  be  declared  nominated; 
aspirants  for  county,  state  district,  and  state  offices  receiving  the 
highest  niunber  of  votes,  being  not  less  than  thirty-five  per  cent  of 
the  total  party  vote,  shall  be  declared  nominated.  In  case  no 
aspirant  of  the  party  for  such  an  office  receives  the  requisite  thirty- 
five  per  cent  of  the  votes,  proper  notice  shall  issue  and  nomination 
shall  be  by  regularly  constituted  convention.  This  is  an  advance 
on  the  Wisconsin  law  in  so  far  as  it  prevents  any  one  having  less 
than  thirty-five  per  cent  of  the  party. vote  from  being  the  candi- 
date for  any  office  except  the  minor  offices  of  the  county  divisions. 

5.  The  fifth  type  of  nominating  system  is  to  be  found  in  the 
Pennsylvania  primary  law,  as  amended  in  May,  1907,  which  pro- 
vided that  candidates  for  offices  of  the  commonwealth  to  be  voted 
for  by  the  electors  of  the  state  at  large  should  be  nominated  by 
state  conventions,  and  at  the  same  time  gave  to  each  candidate 
for  the  position  of  delegate  to  the  convention  the  right  to  have 
printed  on  his  ballot  the  name  of  the  candidate  for  public  office 
whom  he  would  support  there. 

A  majority  of  the  direct  primary  laws  in  the  United  States 
provide  that  the  person  who  receives  the  highest  number  of  votes 
shall  be  declared  the  party  candidate  for  the  office  which  he  seeks 
—  thus  making  it  possible  to  nominate  by  minority  vote.  That 
this  is  highly  undesirable  has  long  been  evident  even  to  the  most 
ardent  advocates  of  direct  nomination.  "It  prevents,"  urges 
an  able  critic,  "a.  nimiber  of  candidates  representing  the  majority 


696  American  Government  and  Politics 

sentiment  as  to  party  principles  from  coming  into  the  field  as 
candidates  for  the  nomination  for  fear  the  candidate  of  a  minority 
may  be  named  by  receiving  a  higher  vote  than  any  one  candidate 
among  the  majority  candidates.  The  present  primary  is,  in 
effect,  a  convention  to  which  every  voter  is  a  delegate  and  in 
which  the  candidate  receiving  the  most  votes  on  the  first  ballot 
is  the  nominee."  ^  It  affords  an  opportunity  for  a  man  repre- 
senting a  minority  and  its  principles  to  become  the  standard- 
bearer  of  the  whole  party,  thus  violating  the  first  principles  of  the 
democratic  rule  which  primary  legislation  was  designed  to  obtain. 

Several  attempts  have  been  made  to  remedy  this  obvious 
defect.  In  the  South  it  is  a  general  practice  to  require  an  ab- 
solute majority  in  primary  elections,  and  in  case  no  candidate 
receives  an  absolute  majority,  a  second  ballot  is  taken  on  the  two 
candidates  standing  highest  on  the  Hst.  To  guard  against  nomi- 
nation by  too  small  a  minority,  Iowa,  as  we  have  seen,  has 
provided  a  certain  minimum  percentage  as  necessary  for  nomi- 
nation, requiring  nomination  by  convention  in  case  no  candidate 
receives  the  fixed  minimum  of  votes. 

Another  plan,  preferential  voting,  was  adopted  in  Idaho  in  1909. 
"Under  this  statute  an  appHcation  of  the  second-choice  vote 
is  practically  as  wide  as  that  of  the  primary  law  itself.  The 
elector  is  to  vote  for  both  his  first  and  second  choice  wjienever 
there  are  more  than  twice  as  many  candidates  for  nomination 
as  there  are  positions  to  be  filled,  i.e.,  whenever  there  are  more 
than  two  candidates  for  a  singular  office  or  four  for  two  places 
in  a  plural  ofiice  or  body.  An  absolute  majority  of  first-choice 
votes  is  required  to  nominate  for  any  office,  even  the  office  of 
Congressman  and  United  States  Senator.  If  no  candidate  for 
a  given  nomination  receives  a  clear  majority  of  first-choice 
votes,  the  second-choice  votes  of  each  candidate  are  to  be  can- 
vassed and  added  to  his  first-choice  votes.  Then  the  candidate 
having  the  largest  number  of  both  first-  and  second-choice  votes 
combined  secures  the  nomination."  ^ 

^  For  a  criticism  of  the  nomination  by  plurality  vote  and  an  ingenious 
suggestion  for  a  remedy  without  readopting  the  convention  system,  see  an 
article  in  the  American  Political  Science  Review,  Vol.  II,  pp.  43  ff.,  by  Mr- 
Charles  K.  Lush. 

2  See  the  statement  in  the  American  Political  Science  Review  for  Novem- 
ber, 1909,  by  Professor  Leon  E.  Aylsworth.  Washington  also  has  preferential 
voting  (Laws  of  1907-1909). 


State  and  Local  Politics  '     697 

The  advantages  claimed  for  this  new  system  of  direct  nomi- 
nations are  as  follows:  — 

1.  It  encourages  active  political  work  on  the  part  of  the  rank 
and  file  by  making  it  easier  for  the  ordinary  party  member  to 
exercise  some  influence  on  the  choice  of  committeemen  and 
candidates. 

2.  It  brings  out  a  larger  vote  to  the  primaries  than  was  cus- 
tomary under  the  system  that  provided  only  for  the  choice 
of  convention  delegates  at  primaries  —  a  sign  of  greater  public 
interest  which  it  is  desirable  to  cultivate.^ 

3.  It  prevents  powerful  economic  interests,  such  as  railway 
and  other  corporations,  from  contributing  heavily  to  campaign 
expenses  and  from  controlHng  the  nominations  to  public  office. 

4.  It  secures  democratic  control  within  the  party  and  prevents 
it  from  becoming  simply  an  organized  self-perpetuating  machine. 

5.  It  secures  the  nomination  of  better  men  by  making  their 
nomination  depend  upon  the  presentation  of  their  claims  to  the 
voters,  instead  of  upon  secret  manipulations. 

The  specific  criticisms  advanced  against  direct  primaries  may 
best  be  summed  up  in  the  language  of  a  Wisconsin  opponent: — ^ 

1.  The  personnel  of  the  office-holding  class  has  not  been  improved; 
better,  more  capable,  and  cleaner  men  have  not  been  elected  to  office; 
public  officers  are  not  more  devoted  to  their  dutes;  the  civil  service 
is  not  improved  by  the  appointment  of  a  better  class  of  employees. 

2.  Public  morals  are  not  elevated  by  the  change  in  the  method  of 
making  nominations.  Never  before  in  the  history  of  the  state  was  so 
much  money  expended  by  candidates  in  campaigns  as  at  present. 
Never  before  were  there  so  many  open  charges  of  corruption  and  the 
unlawful  use  of  money.' 

3.  It  has  disorganized  parties  and  built  up  personal  political  ma- 
chines. 

4.  The  members  of  the  state  legislature  are  split  up  into  factions 

^  The  evidence  on  this  point  is  overwhelming. 

2  Milwaukee  Sentinel  for  November  7,  1909.  For  this  reference  I  am 
indebted  to  Professor  R.  B.  Scott,  of  the  University  of  Wisconsin.  Much 
of  the  argument,  of  course,  is  mere  assertion. 

3  Perhaps  the  most  unique  way  of  meeting  the  charge  that  the  direct 
nomination  system  is  expensive  to  candidates  is  devised  in  the  Oregon  law 
of  June  I,  1908,  which  limits  the  amount  to  be  expended  by  each  candidate, 
forbids  other  contributions,  and  provides  a  system  whereby  the  state  prints 
and  distributes  the  pictures  and  programmes  of  each  aspirant  for  office  —  at 
his  own  expense. 


698  American  Government  and  Politics 

and  there  is  no  party  responsibility  for  their  acts,  which  has  resulted 
in  an  endless  amount  of  useless  and  some  harmful  legislation. 

5.  The  primary  contests  have  engendered  so  much  bitterness  that 
each  election  brings  about  a  new  alignment  of  personal  political  ma- 
chines. .  .  . 

7.  Poor  men  and  men  of  moderate  means  cannot  become  candi- 
dates for  office  under  the  primary  election  law  when  there  are  con- 
tests, except  on  two  conditions.  They  must  face  ruin  or  accept  money 
from  others  to  defray  their  necessary  expenses.  If  they  accept  finan- 
cial aid,  they  assume  obUgations  no  public  servant  should  incur. 

8.  The  electors  cannot  "vote  directly  for  the  men  of  their  choice" 
at  a  primary  election.  They  must  vote  for  some  man  whose  name 
appears  on  the  primary  ticket,  and  that  ticket  is  made  up  of  candidates 
who  have  circulated  nomination  papers  or  caused  nomination  papers 
to  be  circulated.  They  may  all  be  office-seekers  and  objectionable 
to  90  per  cent  of  the  voters,  but  the  voter  must  submit  to  make  his 
choice  from  the  self-nominated  primary  candidates. 

9.  Never  in  the  history  of  the  state  have  the  enmities  engendered 
by  poUtical  contests  been  so  bitter  as  they  are  to-day.  All  pretence 
of  the  old  good-natured  rivalry  between  parties  has  disappeared  from 
the  poUtical  arena.  Charges  of  unlawful  use  of  money,  of  a  debauched 
public  service,  of  actual  bribery,  of  personal  dishonesty  and  poHtical 
trickery  were  common  during  the  last  session  of  the  legislature.  .  .  . 

11.  While  no  attempt  has  been  made  to  compute  the  entire  cost 
of  the  law  in  operation  to  the  taxpayers  of  the  state,  counties,  and 
cities,  no  one  will  for  a  moment  dispute  the  truth  of  the  statement  that 
it  has  been  enormous  and  that  no  corresponding  benefit  has  resulted. 

12.  The  law  gives  a  decided  advantage  to  the  man  in  office.  In 
the  case  of  a  United  States  Senator  or  state  officer  where  the  candidate 
must  appeal  to  the  entire  electorate,  the  man  who  is  known  to  the 
people  as  the  man  in  office  is,  has  much  advantage  over  the  newcomer. 
The  well  advertised  candidate,  although  he  is  an  inferior  person,  will  get 
the  nomination  over  a  less  advertised,  but  better  equipped  candidate. 

13.  The  placing  of  names  of  candidates  on  primary  tickets  by  peti- 
tion has  developed  a  new  industry  in  this  state  during  primary  cam- 
paigns—  the  circulation  of  petitions  for  hire.  The  party  clubs  of 
former  years  have  disappeared;  in  their  places  has  appeared  the 
mercenary  who  secures  names  on  petitions  for  a  consideration.  This 
is  an  exchange  of  patriotism  for  pelf. 

14.  The  abolition  of  all  conventions,  county,  district,  and  state,  has 
deprived  the  voters  of  parties  of  the  opportunity  to  get  together,  rub 

.  elbows,  and  become  acquainted.  In  conventions  men  from  different 
sections  of  the  state  met  and  exchanged  views.  They  explained  the 
merits  and  abilities  of  the  several  candidates  for  office  and  they  made 


State  and  Local  Politics  699 

"trades"  to  the  advantage  of  the  party  ticket  in  most  cases.  The 
conventions  were  the  schools  of  poUtics  to  which  many  young  men 
went  for  their  education  and  they  had  an  educative  value.  All  "the 
advantages  of  this  free  intercourse,  and  the  exchange  of  ideas  and  infor- 
mation, disappeared  with  the  aboHtion  of  the  convention. 

15.  The  provision  for  making  platforms  in  conventions  made  up 
of  candidates  for  office  is  a  confessed  failure.  Platforms  made  in  that 
way  do  not  represent  the  principles  of  the  party,  but  are  mere  "catch 
vote"  affairs.  Even  the  candidates  who  make  them  do  not  respect 
them,  for  they  go  out  into  the  field  with  platforms  of  their  own,  in 
many  cases  carefully  prepared,  printed,  and  distributed. 

16.  The  law  has  not  dethroned  the  political  boss.  If  we  ever  had 
a  real  boss  in  Wisconsin  before  the  primary  law  we  have  merely  changed 
bosses.  Upon  that  feMure  of  the  question  there  is  no  chance  for  argu- 
ment. The  law  compHcates  poHtics  and  any  law  that  does  this 
widens  the  opportunity  for  inanipulation  and  increases  the  activity 
of  the  boss.  In  facf,  compUcated  politics  require  leadership  and 
poHtical  genius.  ^___^^'-'' 

VI.  Nominations  for  those  offices  to  which  the  direct  primary- 
is  not  applied  are,  naturally,  left  to  party  conventions,  but  these 
are  in  every  case  regulated  with  more  or  less  strictness  as  to 
selection  of  delegates,  conduct  of  meetings,  and  modes  of  pro- 
cedure. Minnesota,  for  example,  allows  the  nomination  by 
convention  of  all  candidates  who  are  not  required  to  be  nominated 
by  direct  primaries;  and  the  authorized  committees  of  the  parties 
must  give  due  notice  of  the  primaries  to  be  held  for  the  election 
of  delegates,  indicating  at  the  same  time  the  officers  to  be  nomi- 
nated by  the  conventions  so  called.  In  general,  the  primaries 
held  for  the  purpose  of  choosing  delegates  must  be  conducted  as 
other  primaries,  at  a  regular  polling  place,  which  must  be  kept  open 
a  stipulated  time.  When  the  delegates  chosen  at  the  primaries  are 
to  form  a  convention  for  the  election  of  delegates  to  a  state  con- 
vention or  that  of  a  district  larger  than  a  county,  the  party 
conventions  of  the  several  counties  must  be  held  the  same  day. 

The  provisions  of  the  jS'ew  York  law  are  very  full  on  the  elec- 
tion and  conduct  of  local  conventions.  The  term,  convention 
is  applied  to  any  assemblage  of  delegates  of  a  party  in  and  for 
any  political  subdivision  ^  of  the  state,  duly  convened  for  the 

^  Apparently  this  excludes  state  conventions  from  the  operation  of  the 
law,  although  section  50  of  the  older  election  law  defines  a  convention  in 
such  a  way  as  to  include  state  conventions. 


700  American  Government  and  Politics 

purpose  of  nominating  "candidates  for  public  office,  electing 
delegates  to  other  conventions,  electing  members  of  political 
committees,  or  transacting  any  other  business  relating  to  the 
affairs  of  a  party.  Delegates  to  conventions,  except  those  made 
up  of  delegates  who  by  party  rules  are  chosen  at  other  conven- 
tions, are  to  be  chosen  at  primaries.  Due  provision  is  made  for 
the  delivery  of  certificates  of  election  to  delegates  chosen  at 
primaries;  the  apportionment  of  delegates  on  a  basis  of  party 
vote  is  made  obUgatory;  the  room  in  which  the  convention  is  to 
meet  must  have  ample  seating  capacity;  every  convention  must 
be  called  to  order  by  the  chairman  of  the  committee  with  whom 
the  call  originates;  the  general  features  of  the  convention's 
procedure  are  determined;  and  provisions  are  made  for  deciding 
contests  over  seats.  All  rights  secured  to  electors,  boards,  com- 
mittees, and  officials  under  the  act  with  regard  to  conventions 
(among  other  things)  are  to  be  upheld  by  the  courts,  and  in  re- 
viewing any  action  or  neglect  relating  to  conventions,  the  court 
is  to  consider,  but  is  not  controlled  by,  party  rules,  and  shall 
make  such  decision  or  order  as  justice  may  require  under  the 
facts  and  circumstances  of  the  case.  Service  of  process  on  the 
chairman  or  secretary  of  the  convention  is  sufficient. 

VII.  In  connection  with  the  nomination  of  candidates,  espe- 
cially for  state  offices,  it  is  a  custom  of  political  parties  to  formu- 
late their  principles  into  a  platform.  In  those  states  which  have 
not  attempted  to  interfere  with  the  higher  ranges  of  political 
organization  and  operation,  the  futiction  of  defining  party 
doctrine  is  left  to  the  state  convention  where  it  originally  be- 
longed, in  form,  if  not  in  fact.  The  states,  however,  which  have 
provided  for  direct  nomination  of  state  officers,  have  also  been 
compelled  to  consider  the  question  of  drafting  the  party  platform. 
Wisconsin  has  left  this  matter  to  the  meeting  of  the  candidates 
and  certain  members  of  the  party  in  official  positions  at  which 
the  state  chairman  and  committee  are  elected.^  Kansas  con- 
stitutes by  law  an  organization  known  as  the  party  council,  com- 
posed of  "the  candidates  for  the  various  state  offices,  for  United 
States  Senator,  for  members  of  the  national  house  of  repre- 
sentatives, for  the  state  senate,  for  the  state  house  of  representa- 
tives, nominated  by  each  poHtical  party  at  each  primary,  the 
national  committeeman,  the  United  States  Senators  and  state 
^  See  above,  p.  690. 


State  and  Local  Politics  701 

senators  of  such  political  party  whose  term  of  office  extends  be- 
yond January  of  the  year  next  ensuing,  and  the  chairmen  of  the 
county  committees  of  the  several  counties  of  the  state,"  and  this 
general  assemblage  of  chosen  party  representatives  is  charged 
with  the  task  of  drafting  the  state  platform. 

VIII.  The  extensive  use  of  money  in  elections  by  candidates  and 
committees,  and  the  notorious  instances  of  large  and  significant 
contributions  by  corporations  and  private  persons,  led  to  a  wide- 
spread beUef  that  party  machinery  was  merely  an  adjunct  of 
special  interests,  while  the  victor  at  the  polls,  to  reverse  the 
ancient  dictum,  belonged  to  the  spoils.  It  availed  nothing, 
it  was  argued,  to  secure  to  the  rank  and  file  legal  rights  in  the 
selection  of  delegates  and  candidates  if  the  militant  section  of 
the  party  continued  under  the  dominance  of  corporations;  and 
thus  the  control  of  money  in  elections  has  become  the  latest 
phase  in  the  development  of  the  legislative  regulation  of  political 
parties.  Four  distinct  types  of  provisions  have  been  devised 
to  secure  this  control:  (a)  regulation  of  expenditures  of  candi- 
dates; (b)  definition  and  limitation  of  the  financial  powers  of 
committees;  (c)  restriction  or  prohibition  of  contributions  by 
corporations;  (d)  definition  of  the  objects  for  which  money  may 
be  spent.  The  tendencies  in  legislative  control  of  financial  opera- 
tions of  parties  are  clearly  revealed  in  the  statutes  of  New  York, 
which,  for  the  sake  of  brevity,  will  alone  be  considered  here.^ 

1.  Restrictions  on  candidates.  The  law  of  New  York  limits 
to  a  definite  sum  the  amount  which  each  candidate  for  an  elective 
office  may  spend  and  compels  him  to  file  within  twenty  days 
after  the  election  a  sworn  statement  giving  in  detail  all  his 
receipts  and  expenditures.  Failure  or  refusal  to  comply  is  treated 
as  a  misdemeanor  and  also  punishable  by  the  forfeiture  of  office. 

2.  Control  of  political  committees.  The  law  defines  a  political 
committee  as  every  committee  or  combination  of  three  or  more 
persons  cooperating  to  aid  or  promote  the  success  or  defeat  of  a 
poHtical  party  or  principle  or  of  any  proposition  submitted  to  vote 

^  In  the  development  of  this  type  of  legislative  control  New  York  led  the 
way  in  1890  by  the  enactment  of  an  ineffectual  law  requiring  candidates  to 
report  expenditures  but  leaving  committees  free.  Between  1890  and  1905 
no  less  than  fifteen  states  adopted  restrictive  measures,  usually  denominated 
"Corrupt  Practices  Acts,"  and  step  by  step  the  grand  outlines  and  minor 
details  of  a  complete  scheme  of  supervision  were  placed  on  the  statute  books. 
See  Senate  Document,  No.  86,  59th  Congress,  ist  Sess.,  pp.  5-10. 


JP^ 


American  Government  and  Politics 


at  a  public  election  or  to  aid  or  take  part  in  the  election  or  defeat 
of  a  candidate  for  publit  office.  Every  such  committee  must  have 
a  treasurer  and  require  him  to  keep  detailed  accounts  of  all  money 
or  its  equivalent  received  or  promised,  and  of  all  expenditures, 
disbursements,  and  promises  to  pay  made  by  the  committee. 
All  payments  in  excess  of  $5  must  be  receipted  by  vouchers 
showing  the  amount  and  object  of  the  expenditure.  Within 
twenty  days  after  the  election  a  statement  must  be  filed,  setting 
forth  all  the  receipts,  expenditures,  disbursements,  and  liabilities 
of  the  committee,  and  of  every  officer,  member,  or  other  person 
acting  in  its  behalf.  In  each  case  the  statement  must  include  the 
amount  received,  the  name  of  the  person  or  committee  from 
whom  it  was  received,  the  date  of  its  receipt,  the  amount  of  every 
expenditure  exceeding  $5,  the  name  of  the  person  or  committee 
to  whom  it  was  made,  and  the  date.  Except  in  cases  where  the 
expenditure  is  to  another  committee,  the  purpose  of  the  dis- 
bursement must  be  clearly  stated. 

3.  Prohibition  of  corporation  contributions.  The  law  regu- 
lating corporation  contributions,  as  amended  in  1906  (chap.  239) 
provides  that  no  corporation  or  joint  stock  association  doing 
business  in  the  state  (except  political  associations)  shall  directly 
or  indirectly  pay,  offer,  or  use,  consent  or  agree  to  pay  or  use  any 
money  or  property  for  or  in  aid  of  any  poHtical  party,  committee, 
or  organization  maintained  for  poUtical  purposes.  Aid  to  can- 
didates for  nomination  or  for  office  is  Ukewise  forbidden  as  well  as 
all  contributions  for  any  political  purpose  whatever.  Violation 
of  the  statute  by  any  officer,  director,  stockholder,  attorney,  or 
agent  is  a  misdemeanor  punishable  by  imprisonment  for  one  year 
and  a  fine  of  not  more  than  $1000.  No  person  is  excused  from 
testifying  or  producing  evidence  on  the  ground  of  incrimination, 
but  immunity  is  assured  in  such  cases. ^ 

4.  Definition  of  the  objects  of  campaign  expenditures.  The 
culmination  of  this  system  of  control  is  to  be  found  in  the  rather 
precise  definition  of  the  objects  for  which  money  may  be  used  in 
connection  with  elections.  The  New  York  statute  of  1906  (chap. 
503,  sect,  i)  includes  the  following  hst:  rent  of  halls  and  expenses 
connected  with  pubHc  meetings,  preparation  and  pubHcation  of 
various  "literary  material,"  compensation  for  agents  to  prepare 

^  See  also  the  federal  law,  approved  January  26,  1907,  forbidding  cor- 
porations to  make  contributions  in  connection  with  federal  elections. 


State  and  Local  Politics  703 

and  supervise  articles  and  advertisements  for  the  press,  payment 
of  newspapers  for*  publishing  materials,  rent  of  offices  and  club 
rooms,  compensation  of  clerks,  agents,  and  attorneys  managing 
the  "reasonable  business  of  elections,"  preparation  of  lists  of 
voters,  personal  expenses  of  candidates,  travelHng  expenses,  com- 
pensation of  workers  at  the  polls,  and  the  hire  of  carriages.  In- 
deed, this  act  goes  into  such  detail  that  it  appears  to  the  laymen  in 
pohtics  as  an  insurmountable  barrier  to  illegal  election  expendi- 
tures; but  probably  to  the  eye  of  an  experienced  election  worker 
there  are  plenty  of  loopholes. 

The  most  unique  experiment  for  controlling  party  funds  was 
devised  by  the  legislature  of  Colorado  in  1909  by  the  passage  of  an 
act  declaring  that  "the  expenses  of  conducting  campaigns  to 
elect  state,  district,  and  county  officers  at  general  elections  shall 
be  paid  only  by  the  state  and  by  the  candidates."  It  is  made  a 
felony  for  any  other  person  or  any  corporation  to  contribute  to 
any  party  committee  or  any  candidate  for  these  offices  and  also 
it  is  a  felony  for  any  candidate  or  committee  to  accept  such  a 
contribution.  The  amount  of  money  which  the  candidates  may 
themselves  personally  contribute  and  expend  is  regulated  by  the 
salaries  or  fees  of  the  offices  for  which  they  are  respectively  can- 
didates. In  addition,  the  state  contributes  to  each  poHtical  party 
twenty-five  cents  for  every  vote  cast  by  that  party  for  governor 
at  the  last  preceding  election.  The  amount  is  paid  over  to  the 
state  chairman  of  each  party  who  is  made  responsible  under  bond 
for  the  proper  distribution  of  this  money  among  the  county 
chairmen  in  accordance  with  the  strength  of  the  local  vote,  and 
also  for  the  proper  expenditure  of  the  funds  so  contributed  by 
the  state.^ 

N on-Partisan  Politics 

While  strongly  emphasizing  the  place  of  party  government  in 
American  pohtics  the  influence  of  non-partisan  organizations 
should  by  no  means  be  lost  sight  of.  The  non-partisan  or  inde- 
pendent vote  is  often  the  really  decisive  element,  particularly 
in  those  cases  in  which  the  two  ^  great  parties  are  more  or  less 
evenly  divided;  and  there  is  no  doubt  that  there  is  an  ever- 
increasing  proportion  of  the  voters  who  are  independent  of  party 

^  Digest  by  Professor  Leon  E.  Aylsworth  in  the  American  Political  Science 
Review,  August,  1909,  p.  382. 


704  American  Government  and  Politics 


3 


organization.  In  many  a  national  election  an  appeal  has 
made  to  the  non-partisan  voter.  The  first  Republican  platform 
of  1856  invited  the  affiHation  and  cooperation  of  the  men  of  all 
politics,  and  the  platform  of  i860,  after  enunciating  the  prin- 
ciples of  the  party,  appealed  for  "the  cooperation  of  all  citizens, 
however  differing  on  other  questions,  who  substantially  agree  with 
us  in  their  affirmance  and  support."  The  Democrats  in  1876 
appealed  to  their  "fellow-citizens  of  every  former  political  c6n- 
nection";  and  from  that  day  to  this  the  independent  element  of 
the  nation  has  not  been  overlooked  in  national  campaigns. 

However,  it  is  in  local,  and  especially  municipal,  poHtics  that 
the  non-partisan  or  independent  element  is  strongest.  In  every 
great  city  there  is  a  non-partisan  citizens'  organization  of  one 
form  or  another.  In  1896,  the  Municipal  Voters'  League  of  Chi- 
cago was  founded  to  fight  corruption  in  the  government  of  that 
city.  The  League  is  composed  of  voters  scattered  throughout 
the  city  who  express  their  approval  of  its  purpose  and  methods 
by  signing  cards.  The  purpose  of  the  League  is  not  the  estab- 
lishment of  a  new  party  but  the  concentration  of  public  opinion 
and  pubUc  scrutiny  upon  the  candidates  nominated  by  the  other 
parties.  It  is,  in  a  word,  a  pubhcity  committee:  prior  to  each  city 
election  it  maintains  headquarters  into  which  pour  suggestions 
for  nominations  and  criticisms  of  city  officials;  as  soon  as  candi- 
dates are  announced  or  nominated  it  sends  letters  of  inquiry  to 
them  in  order  to  ascertain  what  stand  they  intend  to  take  if  elected; 
a-nd  through  the  campaign  it  endeavors  to  secure  the  widest  pub- 
hcity with  regard  to  the  character  and  pohcies  of  the  various 
candidates.  It  has  undoubtedly  wielded  some  influence  for  good 
in  the  city,  and  party  managers  in  selecting  candidates  in  many 
wards  in  the  city  can  no  longer  ignore  its  recommendations. 

The  non-partisan  organization  of  New  York  is  the  Citizens* 
Union,  a  group  of  persons  united  without  regard  to  party  for  the 
purpose  of  securing  the  honest  and  efiicient  government  of  the 
city  of  New  York  by  the  nomination  and  election  of  candidates 
or  by  indorsing  the  nominations  of  regular  parties  whose  char- 
acter and  poUcy  the  Union  can  approve.  The  Citizens'  Union, 
however,  differs  from  the  Municipal  Voters'  League  in  being  a 
sort  of  political  party  with  officers,  committees,  and  conventions 
modeled  somewhat  on  the  plan  of  the  older  parties.  By  uniting 
with  the  RepubUcan  party,  which  is  in  a  minority  in  New  York 


State  and  Local  Politics  705 

City,  it  was  able  in  1901  to  contribute  powerfully  to  the  election 
of  Mr.  Seth  Low  as  mayor;  but  it  was  unsuccessful  in  the  next 
mayoralty  contest,  and  since  that  time  has  confined  its  work 
largely  to  poKtical  education  and  the  indorsement  or  nomination 
of  candidates  for  minor  offices. 

Cambridge,  Massachusetts,  formerly  had  an  organization 
known  as  the  Library  Hall  Association.  It  stood  for  the  principle 
of  non-partisanship  in  municipal  politics  but  was  not  a  poUtical 
organization  itself — that  is,  it  did  not  attempt  to  create  poUtical 
machinery  like  that  estabhshed  by  the  Citizens'  Union.  At 
first  the  representatives  of  the  association  attended  the  sessions 
of  the  city  council  and  a  record  of  all  the  members  of  the  Council 
was  published  in  the  local  newspapers  and  in  pamphlet  form. 
The  failure  of  the  voters  to  take  an  interest  in  this  work  of  publi- 
cation led  the  association  to  abandon  ^  it  and  adopt  the  plan  of 
holding  meetings  immediately  before  the  city  elections  for  the 
purpose  of  scrutinizing  the  candidates  nominated  by  the  various 
parties  and  groups.  At  this  meeting  the  names  of  all  the  candi- 
dates were  discussed  and  the  association  decided  upon  the  men  it 
would  support.  In  some  instances,  however,  it  made  nominations 
of  its  own.  The  association  thus  prepared  a  slate  of  its  own  and 
waged  a  campaign  in  its  support.^  This  association,  however, 
finally  w^ent  to  pieces;  and  its  place  has  been  taken  by  a 
"Non-partisan  Municipal  Party"  which  is  for  all  practical 
purposes  an  organized  party,  but  it  is  opposed  to  bringing 
national  issues  into  city  politics. 

1  See  article  in  Municipal  Affairs,  Vol.  IV,  p.  363,  June,  1900. 


2Z 


CHAPTER  XXXI 

TAXATION    AND    FINANCE 

The  raising  and  appropriation  of  revenues  is  always  one  of  the 
leading  subjects  of  controversy  in  state  constitutional  conven- 
tions. This  function  of  government  has  been  a  source  of  log- 
rolling and  jobbery  of  every  kind,  great  and  small;  and  the  ten- 
dency, everywhere  manifest,  to  misappropriate  funds  and  to  rush 
headlong  into  debt  has  forced  the  adoption  of  many  constitu- 
tional provisions  in  behalf  of  the  taxpayer.  No  safeguard  seems 
to  be  too  minute  to  be  unworthy  of  a  constitutional  sanction: 
the  legislature  of  Alabama  must  even  buy  its  fuel  according  to 
the  rules  laid  down  in  the  fundamental  law  of  the  commonwealth. 

The  early  state  constitutions  gave  the  legislatures  a  free  hand, 
but  the  reckless  abandon  with  which  money  was  raised  and  spent 
soon  gave  the  taxpayers  pause,  and  they  began  to  devise  plans  ^ 
for  stopping  one  form  of  malversion  after  another,  only  to  find 
the  legislature  ingenious  enough  to  discover  new  loopholes.  Be- 
fore taking  up  the  actual  methods  for  raising  and  disbursing  state 
revenues,  it  will  be  necessary,  therefore,  to  consider  the  general 
character  of  the  limitations  under  which  the  state  legislature 
must  work. 

Constitutional  Limitations 

The  ancient  rule  that  money  bills  must  originate  in  the  lower 
house  —  once  so  prominent  in  Anglo-Saxon  polity  —  is  now  laid 
down  in  less  than  one-half  of  our  state  constitutions.  A  number 
of  them,  in  fact,  specifically  state  that  any  bill  may  originate  in 
either  house:  "Any  bill  may  originate  in  either  house  of  the  legis- 
lature and  all  bills  passed  by  one  house  may  be  amended  by  the 
other,"  runs  the  New  York  constitution;  but  as  a  general  prac- 
tice the  senate  concedes  to  the  lower  house  the  right  of  initiating 
measures  for  raising  revenues  and  often  general  appropriation 
bills  as  well.^    It  can  hardly  be  said,  however,  with  due  respect 

^  Agger,  The  Budget  in  the  American  Commonwealth  (Columbia  University 
Studies),  p.  22. 

706 


Taxation  and  Finance  707 

for  this  ancient  and  honorable  doctrine  on  money  bills,  that  it 
constitutes  any  safeguard  against  careless  and  corrupt  finance 
in  legislatures;  and  it  must  be  admitted  also  that  it  has  slowly 
been  declining  in  pubHc  esteem. 

Perhaps  the  most  important  safeguard  against  reckless  finance 
is  the  precise  Hmitation  on  indebtedness  imposed  quite 
generally  by  the  recent  constitutions.  New  York,  for  example, 
fixes  the  debt  hmit  at  $1,000,000;  and,  except  for  certain  urgent 
reasons  —  to  suppress  insurrection  and  wage  war  —  the  legislature 
can  create  an  additional  debt  only  for  a  specified  purpose, 
which  must  be  submitted  to  a  popular  vote  and  receive  a  major- 
ity of  all  the  votes  cast  for  and  against  it.^  Ohio  goes  further: 
after  estabhshing  the  debt  Hmit  at  $750,000  the  constitution 
provides  that  no  other  debt  whatsoever  may  be  created  by  or  on 
behalf  of  the  state,  except  debts  to  repel  invasion,  suppress  in- 
surrection, defend  the  state  in  war,  or  to  redeem  the  present  out- 
standing indebtedness.  Coupled  with  this  definite  Hmitation, 
there  is  usually  a  clause  requiring  the  legislature,  on  creating  a 
new  debt,  to  make  provision  for  meeting  it  when  it  falls  due. 

The  various  devices  for  restricting  the  debt-contracting  powers 
of  state  legislatures  have  had  a  decided  effect  in  reducing  and 
controlUng  expenditures.  The  total  outstanding  debt  of  all  the 
commonwealths  in  1870  was  $325,866,898;  in  1890,  $223,107,883; 
and  in  1902  the  total  debt  of  the  states  and  territories  was  only 
$234,908,873.  Massachusetts  now  comes  first  with  a  debt  of 
$78,097,595;  New  York  second  with  $41,230,660;  and  Virginia 
third  with  $24,986,959.  A  few  of  the  states,  lUinois,  Iowa, 
Michigan,  Nebraska,  Oregon,  and  South  Dakota,  were  reported 
in  1908-1909  as  having  no  indebtedness  at  all.  It  certainly  may 
be  said  that  the  finances  of  the  American  commonwealths  are  on 
a  sound  basis  so  far  as  indebtedness  is  concerned. 

In  a  majority  of  states  some  provision  is  made  for  uniformity 
in  taxation.^  This  varies  from  state  to  state.  In  Pennsylvania 
all  taxes  must  be  uniform  upon  the  sarrte  class  of  subjects  within 
the  territorial  limits  of  the  authority  laying  the  tax.  Ohio  ad- 
heres to  a  still  older  principle:    "Laws  shall  be  passed  taxing 

^  See  Readings,  p.  461. 

2  It  is  the  common  practice  for  the  state  to  exempt  from  tax  the  buildings 
and  certain  other  property  of  religious,  educational,  and  charitable  insti- 
tutions. 


7o8  American  Government  and  Politics 

by  a  uniform  rule  all  moneys,  credits,  investments  in  bonds, 
stocks,  joint  stock  companies,  or  otherwise;  and  also  all  real  and 
personal  property  according  to  its  true  value  in  money,"  —  ex- 
cept certain  public  bonds,  the  property  of  some  institutions,  and 
personal  property  of  any  individual  to  an  amount  not  exceeding 
$200.  In  West  Virginia,  taxation  must  be  equal  and  uniform 
throughout  the  state,  and  all  property,  both  real  and  personal, 
must  be  taxed  in  proportion  to  its  value;  and  no  species  of  prop- 
erty from  which  a  tax  may  be  collected  can  be  taxed  higher 
than  any  other  species  of  property  of  equal  value. 

To  secure  regularity  and  pubhcity  in  legislative  appropriations, 
it  is  now  quite  common  to  embody  in  the  constitution  any  or  all 
of  the  following  principles.^  Money  shall  be  paid  out  of  the 
treasury  only  in  pursuance  of  an  appropriation  by  law;  every  law 
imposing  a  tax  must  specify  the  object  to  which  the  income  is  to 
be  devoted;  the  yeas  and  nays  must  be  taken  on  the  final  passage 
of  a  money  bill  and  recorded;  the  credit  of  the  state  may  not  be 
given  or  loaned  to  any  private  person  or  association;  the  gov- 
ernor may  veto  single  items  in  the  appropriation  bill;^  the  general 
appropriation  bill  may  embrace  nothing  but  appropriations  for 
the  ordinary  expenses  of  the  state  executive,  legislative,  and  judi- 
cial departments  and  for  some  other  specific  purposes;  no  appro- 
priation shall  be  made  for  a  longer  term  than  two  years;  and  no 
revenue  bill  may  be  passed  during  the  last  five  days  of  the  session. 

Legislative  Methods 

Finances  are  handled  in  our  state  legislatures  in  much  the 
same  way  as  they  are  in  Congress,  and  with  similar  results  with 
regard  to  confusion  and  absence  of  responsibility.  There  is 
usually  in  each  house  a  committee  on  ways  and  means  and  an- 
other dealing  with  appropriations.  In  about  half  the  states  it 
is  the  custom  to  raise  revenues  under  a  general  law  which  stands 
in  force  from  year  to  year.  In  these  states  the  appropriations 
of  the  legislative  sessions  are  totalled  and  a  rate  fixed  on  the 
evaluated   property   that    will    cover   the   expenditures.     Such 

^  See  Readings,  p.  459. 

2  This  power  is  possessed  by  more  than  one-half  of  the  governors  and 
used  quite  freely,  much  to  the  distress  of  the  politicians,  but  an  executive 
veto  of  an  appropriation  is  rarely  overruled.  Agger,  op.  cit.,  p.  96;  Reading, 
P-447- 


I 


Taxation  and  Finance  709 

a  practice  works  best,  of  course,  when  the  general  property  tax 
is  in  use.  In  the  other  states,  at  least  some  portion  of  the  revenue 
system  is  reenacted  at  each  session  of  the  legislature,  while  the 
remainder  is  derived  under  general  and  continuing  laws.  For 
example.  New  York  has  indicated  by  law  certain  sources  of  reve- 
nue for  state  purposes,  such  as  stock  transfer,  inheritance,  fran- 
chise, and  corporation  taxes,  and  these  taxes  are  collected  from  year 
to  year  without  reenactment  unless,  of  course,  the  legislature  sees 
fit  to  modify  any  of  the  provisions. 

As  in  Congress,  so  in  the  state  legislature  there  is  no  finance 
minister  responsible  for  the  entire  budget,  and  consequently 
there  is  the  same  lack  of  coordination  between  income  and  outgo. 
In  many  states  where  the  revenue  is  derived  from  a  levy  on 
genera]  property,  the  value  of  which  has  been  fairly  well  estab- 
Ushed  by  assessment,  it  is  comparatively  easy  to  provide  for  the 
revenue  after  all  of  the  appropriations  have  been  totalled  at  the 
close  of  the  session,  but  this  affords  no  way  of  checking  up  ex- 
penditures against  income  while  the  legislature  is  making  ap- 
propriations. Indeed,  it  is  not  possible  to  know  the  total  amount 
appropriated  until  some  time  after  the  adjournment  of  the  legis- 
lature—  until  the  governor  has  exercised  his  right  of  vetoing 
items. 

In  the  absence  of  a  finance  minister  in  the  legislature  there 
is  a  large  variety  of  methods  adopted  attacking  the  problem 
of  appropriations.  The  official  report  of  the  state  auditor, 
treasurer,  or  finance  officer  —  showing  the  receipts  and  expendi- 
tures for  the  preceding  year,  the  balance  in  the  treasury,  and 
the  amounts  required  by  the  various  departments  —  gives  the 
legislature  some  clew  to  the  situation,  but  in  practice  it  affords 
only  a  starting-point,  so  that  the  legislature  is  soon  far  adrift. 
Alabama  has  attempted  to  give  a  little  more  coordination  in  the 
finances  by  providing  that:  ''The  governor, auditor,  and  attorney- 
general  shall,  before  each  regular  session  of  the  legislature, 
prepare  a  general  revenue  bill,  to  be  submitted  to  the  legislature 
for  its  information,  and  the  secretary  of  state  shall  have  printed 
for  the  use  of  the  legislature  a  sufficient  number  of  copies  of  the 
bill  so  prepared,  which  the  governor  shall  transmit  to  the  house 
of  representatives  as  soon  as  organized,  to  be  used  or  dealt  with 
as  that  house  may  elect.  The  senate  may  propose  amendments 
to  revenue  bills." 


7 10  American  Government  and  Politics 

In  the  matter  of  appropriations/  our  state  methods  are  in 
worse  confusion,  if  possible,  than  the  national  methods.  The 
appropriations  —  for  purposes  of  simpKfication  —  may  be  divided 
into  three  groups:  (i)  permanent  appropriations,  such  as  are 
made  to  some  pubHc  institutions  or  commissions,  and  do  not 
require  reenactment  from  year  to  year;  (2)  general  appropria- 
tions for  legislative,  executive,  and  judicial  expenses  and  for  some 
specified  purposes  such  as  the  payment  of  interest  on  public 
debt;  and  (3)  miscellaneous  appropriations  for  special  objects 
provided  by  separate  statutes. 

The  first  of  these  —  the  permanent  appropriations  —  make 
httle  trouble,  because  they  are  fairly  definite  in  character.  There, 
however,  is  a  constant  heavy  pressure  to  increase  the  amount. 

The  general  appropriation  bill  is  now  less  trouble  than  it  used 
to  be,  for  it  is,  as  a  general  rule,  Hmited  by  the  constitution  to 
certain  specific  purposes,  as  indicated  above;  and  in  many  states 
the  vicious  practice  of  attaching  to  appropriation  measures,  laws 
relating  to  extraneous  matters,  for  the  purpose  of  forcing  them 
through  the  legislature,  is  forbidden.  The  general  appropriation 
bill  is  usually  prepared  by  the  committee  on  appropriations 
in  the  lower  house,  but  it  is  almost  always  hammered  sadly  out 
of  shape  in  the  house  and  the  senate. 

The  miscellaneous  appropriations  afford  splendid  opportunities 
for  log-rolling  and  extravagance,  and  they  seldom  receive  any- 
thing Hke  adequate  scrutiny.  Furthermore,  measure  after 
measure  relating  to  some  pubHc  purpose  or  branch  of  the  ad- 
ministration is  passed  with  little  or  no  debate  on  the  cost  in- 
volved in  the  execution  of  the  law.  These  measures  are  intro- 
duced in  large  numbers  by  private  members  of  the  legislature, 
and  there  is  generally  no  person  or  committee  charged  with  the 
duty  of  inquiring  into  the  expense  which  such  laws  carry  with 
them.  For  example,  an  important  change  is  made  in  the  ballot, 
involving  a  large  printing  and  administrative  charge;  the  dis- 
cussion centres  on  the  political  aspect  of  the  question;  and 
perhaps  a  majority  of  those  who  vote  for  the  measure  are  wholly 
unaware  of  the  addition  made  to  the  expenses  of  the  state. 
Such  a  measure,  of  course,  is  not  an  appropriation  bill  in  a  strict 
sense,  but  its  effect  is  to  increase  the  charges  which  the  legislature 
and  local  authorities  must  meet. 

^  For  the  objects  for  which  appropriations  are  made,  see  below,  p.  719. 


Taxation  and  Finance  711 

Economy  and  responsibility  in  finance  would  require  every 
measure  carrying  any  kind  of  a  charge  on  the  funds  of  the  state 
to  be  carefully  scrutinized  by  a  committee  of  the  ablest  men  in 
each  house;  and,  in  addition,  a  detailed  report  of  all  carried  and 
proposed  pubUc  charges  should  be  laid  before  the  legislature  at 
a  reasonable  time  before  adjournment.  The  introduction  of 
no  bill  involving  expenditures  should  be  permitted  within  a 
certain  period  preceding  adjournment,  and  thus  the  jobbery 
customary  amid  the  rush  and  the  confusion  of  the  closing  hours 
of  the  session  could  be  avoided. 

In  connection  with  the  problem  of  devising  intelligent  and 
economical  appropriation  measures.  Governor  Hughes,  in  his 
message  of  January,  1910,  made  important  recommendations 
with  regard  to  securing  estimates  and  coordinating  expenditures. 
In  the  first  place,  he  recommended  that  departments,  com- 
missions, persons,  and  associations  desiring  appropriations  for 
particular  purposes  should  be  required  by  law  to  file  with  the 
state  comptroller  their  statements  in  detail,  with  reasons  for 
their  several  demands.  The  comptroller  should  then  be  required 
to  tabulate  these  requests  for  money  from  the  state  treasury, 
and  have  them  all  ready  for  the  legislature  at  the  opening  of  the 
session.  "  This,"  says  Mr.  Hughes, "  will  insure  desirable  pubUcity 
with  respect  to  the  demands  upon  the  state,  will  greatly  facilitate 
the  legislative  committees  in  dealing  with  questions  of  appro- 
priations, a  work  which  constantly  grows  more  laborious,  and 
will  tend  to  expedite  the  business  of  the  session.  It  will  also 
prepare  the  way  for  such  further  methods  of  examination,  com- 
parison, and  criticism  as  experience  may  show  to  be  advisable." 

In  the  second  place,  Mr.  Hughes  made  the  following  recom- 
mendations with  regard  to  systematic  appropriations:  — 

In  connection  with  outlays  for  public  buildings,  and  for  improve- 
ments and  extension  of  institutional  work,  including  education  and 
charities,  it  seems  to  me  that  the  effort  should  be  made  to  provide  a  ten- 
tative programme  for  a  series  of  years  which,  while  of  course  not  bind- 
ing upon  succeeding  legislatures,  would  have  an  important  influence 
in  shaping  appropriations  in  accordance  with  a  comprehensive  plan, 
and  avoid,  so  far  as  possible,  ill-timed  or  indiscreet  allowances.  The 
various  demands  could  be  classified  so  as  to  define  (i)  those  relating 
to  enterprises  which  are  in  progress  or  to  which  the  state  is  already 
committed;    (2)  the  further  outlays  that  may  be  required  to  bring 


712  American  Government  and  Politics 

existing  institutions  as  units  of  state  work  to  the  highest  available 
degree  of  efficiency,  and  such  additional  faciUties  as  may  be  needed 
in  connection  with  the  expected  increase  in  population;  (3)  such  new 
institutions  or  lines  of  state  activity  as  present  judgment  would  ap- 
prove in  case  there  were  means  sufficient  for  their  estabHshment. 

The  amount  necessarily  required  each  year  for  the  purposes  of  the 
first  two  classes,  and  the  order  of  requirement  and  the  surplus  of  ex- 
pected income  available  for  the  third  class,  should  be  ascertained. 
The  necessary  amounts  should  be  so  distributed  that  no  more  than 
that  reasonably  required  by  the  proper  progress  of  the  work  should 
be  charged  against  the  income  of  any  one  year.  In  this  way  a  con- 
spectus may  be  provided,  say  for  a  period  of  five  years,  showing  the 
imperative  demands  upon  the  treasury  of  the  state  and  the  outlays 
deemed  advisable.  Those  urging  the  state  to  undertake  new  enter- 
prises would  thvis  see  the  relative  importance  of  the  various  requests, 
and  there  would  be  less  risk  of  improvident  or  inopportune  outlays. 

I  beUeve  that  special  appropriations  for  roads,  river  improvements, 
and  other  purposes  for  the  benefit  of  particular  locahties  should  be 
avoided  so  far  as  possible.  All  improvements  of  highways  should  be 
under  the  supervision  of  the  Highways  Commission,  and  any  amend- 
ment of  the  law  needed  to  give  the  Commission  full  jurisdiction  should 
be  supplied.  Similarly,  the  law  relating  to  river  improvement  should  be 
amended,  if  necessary,  so  as  to  remove  any  question  as  to  the  power  of 
the  Water  Supply  Commission  to  provide  for  such  improvement  of 
waterways  (outside  of  the  canal  system)  and  for  such  supply  of  ditches, 
dikes,  and  the  hke,  as  may  be  necessary,  after  due  ascertainment  by  the 
Commission  of  the  extent  to  which  the  expense  should  be  borne  by 
the  locahties  benefited  and  the  part,  if  any,  to  be  charged  upon  the 
state.  The  practice  of  providing  for  such  improvements  by  special 
acts,  or  by  items  in  appropriation  bills  which  place  the  entire  cost  upon 
the  state  without  regard  to  the  benefit  derived  by  the  cities,  towns, 
and  counties  concerned,  is  unjustifiable,  and  should  yield  to  a  general 
method  which  will  permit  these  matters  to  be  dealt  with  in  justice  to 
all  interests. 

Another  source  of  weakness  in  our  state  finances  is  the  absence 
of  effective  supervision  over  the  spending  authorities  by  the 
legislature.  Appropriations  for  departments  and  public  insti- 
tutions are  made,  in  large  part,  on  the  basis  of  representations 
from  the  officers  in  charge,  and  they  are  quite  properly  detailed 
in  many  instances.  Nevertheless,  it  is  impossible  for  so  large 
a  body  as  the  legislature,  or  even  its  overworked  finance  com- 
mittees, to  trace  to  the  very  ends  the  many-branched  stream  that 


Taxation  and  Finance 


T^Z 


flows  from  the  public  treasury.  There  is,  accordingly,  no  such 
intimate  touch  between  the  spending  authorities  and  the  legis- 
lature as  exists  in  England. 

An  attempt  has  been  made,  in  Virginia,  to  remedy  this  obvious 
defect,  for  the  constitution  of  1902  provides  that  the  general 
assembly  shall  at  each  regular  session  appoint  a  standing  auditing 
committee  consisting  of  two  senators  and  three  members  of  the 
lower  house,  charged  with  the  duty  of  examining  annually,  or 
of tener,  the  books  and  accounts  of  the  first  auditor,  the  treasurer, 
the  secretary,  and  other  ofl&cers  at  the  capitol,  and  reporting  the 
results  of  the  investigation  to  the  governor,  to  be  laid  before  the 
legislature.  The  report  is  also  pubHshed  in  two  newspapers  of 
general  circulation.  This  committee  may  sit  during  the  recess 
of  the  general  assembly  and,  besides  being  furnished  expert  service, 
its  members  are  paid  for  their  labors. 

Other  attempts  to  secure  correct  and  efficient  disbursement 
of  public  funds  take  the  form  of  centralization  and  systematic 
zation  in  commonwealth  and  local  accounting.^  For  example, 
in  1909,  the  Indiana  legislature  passed  an  important  statute 
providing  for  a  uniform  system  of  public  accounting  and  for 
the  supervision  of  all  accounts  —  central  and  local  —  by  a  state 
examiner  appointed  by  the  governor  and  removed  by  him  at  will. 
The  law  requires  the  establishment  of  a  state-wide  system  of 
uniform  accounts  "for  every  public  office  and  every  public 
account  of  the  same  class,  of  the  state,  counties,  townships, 
cities,  towns,  and  school  corporations  and  all  state  institutions. 
The  accounts  of  every  office  must  show  in  detail  the  receipt  and 
expenditure  of  pubhc  fimds  and  the  receipt,  use,  and  disposition 
of  pubhc  property.  Separate  accounts  of  every  appropriation 
or  fund  of  the  municipahty  or  institution  showing  date  and 
manner  of  payment  and  the  name,  address,  and  vocation  of  the 
parties  to  whom  any  moneys  are  paid,  and  the  authority  au- 
thorizing such  payment  are  required  to  be  kept  and  verified. 
Separate  accounts  for  each  department,  undertaking,  and  in- 
stitution, and  for  every  pubUc  service  industry  owned  by  the 
municipahty,  and  detailed  reports  of  such  public  service  industry 
showing  the  actual  condition  and  cost  of  service  are  required."  ^ 

^  For  the  recent  Ohio  law,  see  Readings,  p.  565. 

^  For  a  complete  statement,  see  the  survey  by  Mr.  J.  A.  Lapp  in  the 
Political  Science  Review  for  May,  1909,  p.  206. 


714  American  Government  and  Politics 

Sources  of  Revenues 

The  state  usually  derives  its  revenues  from  four  main  sources: 
(i)  public  property,  such  as  lands  and  canals;  (2)  fees  charged 
for  licenses,  franchises,  charters  of  incorporation,  etc.;  (3)  fines 
and  penalties  imposed  for  violation  of  the  criminal  laws;  and 
(4)  taxation.^ 

I.  For  almost  a  century  the  chief  source  of  state  revenue 
was  the  tax  imposed  at  a  certain  rate  upon  all  property,  real  and 
personal,  evaluated  by  local  assessors.  This  state  tax,  con- 
sisting of  a  certain  number  of  cents  on  each  dollar  of  valuation, 
was  added  to  the  local  rate,  collected  by  the  local  authorities, 
and  forwarded  to  the  state  treasury.  Although  several  states 
have  abandoned  in  part,  or  altogether,  this  general  property 
tax,  it  still  constitutes  the  main  reliance  of  a  majority  of  the 
commonwealths,  more  than  eighty-two  per  cent  of  the  state 
and  local  taxes  in  1902  being  drawn  from  this  source. 

The  method  of  laying  and  collecting  the  general  property  tax 
is  practically  the  same  throughout  the  United  States.  The 
property  is  valued  by  a  local  assessor  of  the  town,  township, 
or  county,  as  the  case  may  be.  The  assessor  is  furnished  with 
printed  blanks  containing  long  lists  of  every  conceivable  kind  of 
property  —  houses,  lands,  notes,  stocks,  bonds,  pianos,  watches, 
live  stock,  etc.;  and  he  secures,  usually  by  personal  visits,  the 
total  value  of  each  class  of  property  possessed  by  every  resident 
in  his  area. 

From  these  Usts  the  total  value  of  the  general  property  in 
the  township  or  county  is  obtained,  and  the  amount  due  the 
state  is  readily  discovered  by  applying  the  rate  imposed  by  the 
legislature.  If  the  township  is  the  unit  of  the  assessment,  there 
is  generally  a  county  board  charged  with  the  duty  of  equalizing 
the  values  of  property  in  the  different  units.  When  it  was  found 
that  the  county  authorities  habitually  undervalued  property 
in  order  to  reduce  the  burden  imposed  by  the  state,  the  legis- 
latures resorted  to  the  expedient  of  creating  central  boards  of 
equalization  to  impose  uniform  values  for  the  same  classes  of 
property  throughout  the  state,  thus  connecting  the  work  of  the 
assessors  and  making  each  county  pay  its  proper  quota  into  the 
treasury  of  the  commonwealth. 

*  Agger,  op.  cit.,  p.  123. 


1 


Taxation  and  Finance 


7^5 


As  the  country  passed  from  an  agricultural  into  a  commercial 
and  manufacturing  stage,  there  arose  serious  difficulties  in  con- 
nection with  this  general  property  tax.^  When  property  con- 
sisted of  tangible  things,  lands,  houses,  live  stock,  etc.,  or  mortgages 
on  real  property  recorded  at  the  county  seat,  it  was  easy  for  the 
assessor  to  secure  a  fairly  complete  and  accurate  Ust  of  the  prop- 
erty of  each  resident  within  his  district.  However,  when  joint 
stock  concerns  and  corporations  came  into  existence,  and  persons 
could  invest  their  wealth  in  the  bonds  or  stocks  of  some  cor- 
poration organized  in  a  distant  state,  or  even  in  a  foreign  country, 
and  could  lock  their  papers  in  a  strong  box,  the  assessors  could 
no  longer  keep  track  of  the  property  within  their  local  units. 
There  were  many  other  reasons,  too,  why  the  states  were  forced 
to  cast  about  for  some  other  sources  of  revenue,  but  they  cannot 
be  discussed  here.^  The  result  has  been  a  revolution  in  the  tax 
system  of  many  states,  New  York  having  gone  so  far  as  to  aban- 
don altogether  the  general  property  tax  for  state  purposes  in  favor 
of  inheritance,  corporation,  excise,  and  other  special  taxes. 

2.  The  inheritance  tax,^  though  long  employed  in  Europe, 
has  found  favor  in  America  only  within  recent  years  —  practically 
since  1890,  but  it  has  now  been  adopted  in  some  form  by  more 
than  three-fourths  of  the  states,  and  its  principles  are  everywhere 
receiving  extended  development.  The  rates  are  being  raised; 
the  progressive  rule  increasing  the  rate  with  the  amount  of  the 
inheritance  is  more  frequently  appHed;  the  exemptions  allowed 
to  direct  heirs  are  being  lowered;  and  there  is  a  tendency  to  apply 
it  equally  to  real  and  personal  property.''  In  1907,  the  highest 
rate  collected  was  fifteen  per  cent  imposed  on  collateral  heirs  in 
CaHfornia,  Idaho,  and  North  CaroHna;  the  highest  amount  ex- 
empted for  direct  heirs  was  $20,000  in  lUinois  and  West  Virginia; 
and  the  highest  amount  exempted  for  collateral  heirs  was  $10,000 
in  Connecticut,  Minnesota,  and  Utah.^ 

In  New  York,  property  of  less  than  $10,000  passing  to  a  father, 


1  See  Readings,  p.  597. 

2  See  Readings,  pp.  592  ff.,  for  extracts  from  state  tax  reports  on  this 
whole  subject. 

^  See  Readings,  p.  603. 

*  S.  Huebner,  The  Inheritance  Tax  in  the  American  Commonwealths. 
Quarterly  Journal  of  Economics,  Vol.  XVIII,  1904,  p.  529. 
^  Inheritance  Tax  Laws  (Govt.  Printing  Office,  1907),  p.  47. 


7i6  American  Government  and  Politics 

mother,  husband,  wife,  child,  brother,  sister,  wife  or  widow 
of  a  son,  or  the  husband  of  a  daughter,  or  an  adopted  child,  is 
entirely  exempt;  and  property  of  more  than  $10,000,  passing  to 
such  heirs,  is  taxed  at  the  rate  of  one  per  cent,  while  a  general 
rate  of  five  per  cent  is  imposed  on  other  inheritances  over  $500. 
The  amount  derived  by  New  York  from  this  source,  in  1909, 
was  about  $6,960,000  out  of  a  total  revenue  of  about  $30,000,000 
in  round  numbers. 

Wisconsin,  California,  Idaho,  and  Massachusetts  have  pro- 
gressive taxes  —  that  is,  increasing  in  rate  as  the  inheritance 
increases  —  on  both  direct  and  collateral  heirs.  The  income 
from  this  tax  is  not  very  considerable  when  compared  with  the 
entire  amount  raised  by  our  commonwealths,  but  it  will  no  doubt 
be  materially  increased  in  time. 

3.  The  income  tax  has  been  employed  at  different  times  in  no 
less  than  sixteen  states,  and  is  now  used  in  Massachusetts,  Vir- 
ginia, North  Carolina,  South  Carolina,  Tennessee,  and  Okla- 
homa. However,  it  has  not  proved  a  popular  tax,  nor  an  effective 
source  of  revenue,  on  account  of  the  evasions.  An  attempt  is 
being  made  in  Oklahoma  to  overcome  this  difficulty  of  adminis- 
tration by  requiring  all  persons  to  certify  under  oaths  the  excess 
of  their  incomes  over  $3 500 — the  limit  of  exemption;  by  author- 
izing the  assessor  to  send  to  the  state  auditor  the  names  of  per- 
sons who,  he  believes,  have  not  correctly  certified  their  incomes; 
and  by  empowering  the  auditor  to  resort  to  drastic  measures  for 
the  purpose  of  ascertaining  the  truth  in  the  matter. 

4,  A  most  fruitful  and  popular  source  of  revenue  is  the  tax  on 
corporations  now  quite  generally  imposed.  This  branch  of  state 
finance,  however,  presents  so  many  puzzling  problems  that  it  can 
be  considered  here  only  briefly.  The  taxation  of  manufacturing 
corporations  doing  business  at  a  particular  point  within  the  state 
is  comparatively  simple:  the  property  of  the  corporation  may  be 
estimated  and  included  in  the  general  mass  of  property  within  the 
state,  and  perhaps  a  special  tax  varying  with  the  capitalization 
may  be  imposed  for  incorporation.  However,  railway,  tele- 
graph, express,  street  car,  and  other  corporations  of  a  quasi- 
pubHc  character,  operating  under  special  franchises  or  privileges, 
often  monopolistic  in  character,  are  in  an  entirely  different  class. 
In  taxing  them,  the  legislature  is  constantly  harassed  by  per- 
plexing problems.     A  part  of  the  total  value  of  the  property  of  any 


Taxation  and  Finance  717 

one  of  these  corporations  is  in  tangible  form  in  the  state,  a  part 
in  the  privilege  which  it  enjoys,  and  a  part,  perhaps,  is  due  to 
operations  carried  on  in  other  states  or  in  foreign  countries. 
Take,  for  example,  an  express  company  doing  business  in  Ohio: 
its  tangible  wealth  —  horses,  wagons,  offices,  etc.  —  is  relatively 
slight,  but  the  value  of  the  privilege  of  doing  business  is  enormous, 
because  it  carries  goods  to  and  from  all  points  of  the  Union  and 
the  civilized  world.  In  fixing  the  total  value  of  the  business  of 
such  corporations  within  any  state,  the  public  authorities  are 
compelled  to  rely  largely  on  statements  made  by  corporation 
ofiicials,  which  are  not  always  entirely  satisfactory  sources  of 
information;  and  in  laying  such  taxes,  states  must  also  be  careful 
not  to  come  into  conflict  with  the  interstate  commerce  clause  of 
the  federal  Constitution.^ 

To  meet  these  perplexing  problems  a  variety  of  expedients 
has  been  devised.  Some  states  tax  all  corporations  on  the  actual 
value  of  their  capital  stock;  others  tax  quasi-public  corporations 
according  to  their  gross  receipts  or  their  earnings.  In  New 
York,  for  example,  every  stock  corporation  on  its  formation  under 
any  law  of  the  state  must  pay  to  the  state  treasurer  a  tax  of  one- 
twentieth  of  one  per  centum  upon  the  amount  of  capital  stock 
which  it  is  authorized  to  have,  and  a  like  sum  for  any  subsequent 
increase  in  the  ampunt  of  stock.  In  addition,  every  corporation, 
joint  stock  company,  and  association  must  pay  to  the  state 
treasurer  an  annual  tax  upon  its  capital  stock,  the  value  of  which 
is  based  upon  its  earning  power  and*  taxed  pro  rata.  Some  con- 
cerns, such  as  saving  banks,  are  exempt  from  this  tax;  but  others, 
notably  transportation  and  transmission  companies,  must  pay 
an  additional  franchise  tax. 

5.  All  of  the  states  which  permit  the  sale  of  intoxicating  Hquors 
derive  a  revenue,  state  or  local,  or  both,  from  the  business.  In 
New  York,  this  tax  on  the  liquor  traffic  amounts  in  some  years 
to  more  than  a  fourth  of  the  entire  revenue  of  the  commonwealth, 
but  one-half  of  the  amount  collected  by  the  state  central  govern- 
ment is  returned  to  the  communities  from  which  it  is  derived. 

6.  A  large  proportion  of  the  states,  especially  in  the  South, 
employ  business  and  professional  taxes  for  state  or  local  purposes, 
or  both.  In  some  of  these  commonwealths  only  a  few  special 
trades,  professions,  and  occupations  are  taxed.  "  At  present  nearly 

^  See  Readings,  p.  348 


71 8  American  Government  and  Politics 

all  of  the  commonwealths  levy  license  taxes  on  dealers  in  liquor; 
peddlers,  travelUng  vendors,  and  various  kinds  of  amusements, 
primarily  for  the  purpose  of  regulation  or  suppression.  .  .  . 
These  taxes  are  more  or  less  systematically  employed  for  state 
purposes  in  Pennsylvania,  in  Delaware,  and  in  all  of  the  southern 
states,  save  South  CaroUna,  Missouri,  Arkansas,  and  Texas,  and 
also  in  New  Mexico,  Idaho,  and  Montana.  In  practically  all 
of  these  states  and  in  several  others  similar  taxes  are  employed  — 
and  frequently  much  more  extensively  —  for  municipal  purposes. 
Wilmington,  North  CaroHna,  for  example,  some  years  ago  levied 
license  taxes  upon  124  classes  of  business.  The  license  tax  ordi- 
nance now  in  effect  in  Atlanta  contains  466  items,  thus  permitting 
few  persons  other  than  manual  laborers  to  follow  their  callings 
imtaxed."  ^ 

A  fine  illustration  of  the  revenue  system  of  a  state  which  has 
advanced  far  along  the  way  of  separating  state  and  local  taxes 
and  imposing  special  taxes  is  afforded  by  this  statement  of  the 
income  of  the  central  government  of  New  York: 

1908  1909 
Special    tax    for    judges,    stenog- 
raphers, etc $368,098  31  $330,436  87 

Tax  on  corporations 8,937,635  24  8,671,920  20 

Tax  on  organization  of  corpora- 
tions         207,535  49  343,938  99 

Tax    on    transfers    of    decedents' 

estates  [inheritance]      .     .   •.     .  6,605,891  46  6,962,615  23 

Tax  on  transfers  of  stock      .     .     .  3,907,373  38  5,355,546  16 

Tax  on  trafficking  in  liquors      .     .  9,359,318  63  5,140,524  21 

Tax  on  mortgages 1,666,527  51  1,844,821  45 

Tax  on  racing  associations  .  .  .  247,443  31  65,166  74 
Tax    on    land    of    non-resident 

owners 17,229  58  24,018  12 

$31,317,052  91  $28,738,987  97  2 

The  disbursements  of  state  governments  are  generally  dis- 
tributed with  more  or  less  variation  among  the  following  objects: 
(i)  maintenance  of  the  government  in  its  executive,  legisla- 
tive, and  judicial  branches;  (2)  the  state  militia;   (3)  health  and 

^H.  A.  Millis,  "Business  and  Professional  Taxes,  as  Sources  of  Local 
Revenue,"  First  National  Conference  on  State  and  Local  Taxation,  1908,  pp. 
442-451.  2  Miscellaneous  receipts  of  $2,419,007.93  not  included. 


m 


Taxation  and  Finance  719 


sanitation;  (4)  highways;  (5)  insane  asylums;  (6)  charities; 
(7)  penal  institutions;  (8)  education;  (9)  interest  on  public  state 
debt. 

The  following  disbursements  for  the  state  of  New  York  for  the 
fiscal  year  ending  September  30,  1907,  will  serve  for  the  purpose 
of  illustration: 

State  departments,  commissions,  etc $2,913,344  61 

Charitable  institutions 2,495,042  66 

Hospitals  for  insane 5,951,294  30 

Educational  purposes 6,484,825  :^^ 

Canals,   for  all  purposes,   including  $5,369,384.45 

paid  from  Canal  debt  sinking  fund 8,760,034  06 

Legislature 784,931  39 

Legislative  printing,  including  advertising       .     .     .  396,534  30 

Judiciary        1,240,799  54 

National  Guard,  including  arsenals  and  armories  .  1,033,238  97 
State   prisons,   asylums   for  insane   criminals,  and 

penitentiaries 980,660  50 

Public  buildings 405,876  04 

Maintenance  and  repairs  of  county  highways      .     .  292,972  16 

Repairs  of  highways,  money  system 727,855  93 

Construction  of  highways,  Highway  Improvement 

Fund 1,701,716  15 

Principal  and  interest   temporary  certificates  for 

highway  improvement 557*423  34 

Rivers,  roads,  bridges,  etc.        31,567  24 

Non-resident  taxes,  including  redemption  and  erro- 
neous payments       110,539  56 

Adirondack  Park  and  Catskill  Preserve  purchase 

of  land 339,117  58 

Principal  and  interest  Adirondack  Park  bonds  .     .  210,500  00 

Refunds,  Excise  Department 411,705  66 

Jamestown  Ter-Centennial  Commission     ....  65,000  00 

Hudson-Fulton  Celebration 7, 500  00 

State  Educational  Building 462,027  07 

G.  A.  R.  Encampment 3S,ooo  00 

Purchase  of  Watkins  Glen 46,512  50 

Purchase  of  Mansion  of  Sir  William  Johnson       .     .  25,000  00 

Claims  for  Park  Avenue  damages 63,039  66 

ReUef  of  People  of  the  State  of  CaUfornia       .     .     .  50,000  00 

Palisades  Commission 51,250  62 

Public  administrators 1,763  59 

Expense  of  pubHc  lands 9,917  54 


720  American  Government  and  Politics 

Claims  of  counties  bonded  for  railroad  purposes      .  $6,755  77 

Niagara  Reservation        .     .     .     : 23,891  48 

Quarantine 46,703  31 

Agricultural  societies       274,230  57 

Abolition  of  grade  crossings 50,682  88 

Trust  fund  transactions,  less  amount  included  in 

payments  for  educational  purposes  ' i)93 5,989  31 

Miscellaneous 27,443  66 

Total $39,012,687  28 


CHAPTER  XXXII 

SOCIAL  AND  ECONOMIC   LEGISLATION 

From  certain  quarters  the  demand  is  often  made  that  business 
should  be  taken  out  of  poUtics,  but  any  person  who  has  given 
serious  thought  to  the  matter  knows  that  the  character  of  a  na- 
tion's poKtics  depends  primarily  upon  the  character  of  its  busi- 
ness.^ PoUtics  has  to  do  with  the  formulation  of  popular  will 
into  law;  ^  and  every  important  law  affects  business  —  private 
rights  in  property.  It  would  be  difficult  to  imagine  a  single 
great  political  issue  which^does  not  in  some  way  or  another  in- 
volve business  interests^  Protective  tariff,  control  of  corpora- 
tions, s{iip  subsidies,  labor  legislation,  tenement-house  laws, 
taxation  v^  all  these  matters  and  a  hundred  more  of  almost  equal 
importa^hce  are  in  politics  aijd  will  remain  in  politics  as  long  as 
the  interests  back  of  them  remain  in  the  nation.  Manufacturers 
will  favor  a  protective  tariff;  the  working  class  will  insist  on  better 
wages,  hours,  and  conditions  of  labor;  the  dwellers  in  tenement 
houses  will  demand  more  light  and  better  sanitary  arrangements; 
and  so  on  throughout  all  the  various  groups  into  which  a  nation 
is  divided. 

The  industries  of  a  nation  and  economic  groups  which  they 
create  determine  fundamentally  the  nature  of  the  government 
and  the  issues  which  the  government  must  consider.  This  was 
fully  recognized  by  the  framers  of  the  federal  Constitution  but 
has  been  almost  completely  lost  sight  of  in  the  vapid  political 
theorizing  that  char^-cterized  the  nineteenth  century.  '^  The 
most  common  and  durable  source  of  factions,"  said  Madison, 
"has  been  the  various  and  unequal  distribution  of  property. 
Those  who  hold  and  those  who  are  without  property  have  ever 
formed  distinct  interests  in  society.  Those  who  are  creditors 
and  those  who  are  debtors  fall  under  a  like  discrimination.    A 

^  See  E.  Jenks;  Short  Bistory  of  Politics ;  and  A.  Menger,  Nem  Staatslehre  ; 
A.  Bentley,  The  Process  of  Government. 
^  Goodnow,  Politics  and  Administration. 
3  A  721 


722  American  Government  and  Politics 

landed  interest,  a  manufacturing  interest,  a  mercantile  interest, 
a  moneyed  interest  with  many  lesser  interests,  grow  up  of  neces- 
sity in  civilized  nations  and  divide  them  into  different  classes 
actuated  by  different  sentiments  and  views.  The  regulation  of 
these  various  and  interfering  interests  forms  the  principal  task 
of  modern  legislation  and  involves  the  spirit  of  party  and  faction 
in  the  necessary  and  ordinary  operations  of  government."  ^ 

The  Doctrine  of  Laissez  Faire  —  No  Government  Interference 

The  United  States  began  its  career  as  an  independent  nation 
before  the  steam  engine  and  machinery  had  revolutionized  west- 
ern civilization.  When  the  Declaration  of  Independence  was 
issued,  the  majority  of  the  people  of  the  United  States  earned  their 
livelihood  by  farming  or  in  the  few  scattered  industries  in  which 
the  simplest  of  tools  were  used.  There  were  no  great  factories 
filled  with  complicated  machinery,  no  railways,  no  large  cities 
with  their  countless  thousands  of  workingmen  dependent  for  a 
livelihood  upon  mills  and  mines.  There  were  no  vast  accumu- 
lations of  capital  invested  in  gigantic  enterprises,  and  consequently 
no  need  for  government  interference  and  regulation.  > 

Most  manufactured  articles  that  were  not  imported  from 
Europe  were  made  by  hand  in  small  workshops  where  the  work- 
man was  both  master  and  employee.  Indeed,  many  men  hoped 
that  the  United  States  would  never  become  a  manufacturing 
nation.  "While  we  have  land  to  labor,"  said  Jefferson,  "let 
us  never  wish  to  see  our  citizens  occupied  at  a  workshop  or  twirl- 
ing a  distaff.  .  .  .  Let  our  workshops  remain  in  Europe.  It 
is  better  to  carry  provisions  and  materials  to  workmen  there  than 
to  bring  them  to  the  provisions  and  materials  and  with  their 
manners  and  principles.  .  .  .  The  mobs  of  great  cities  add  just 
so  much  to  the  support  of  pure  government  as  sores  do  to  the 
strength  of  the  human  body."  ^ 

This  primitive  economic  system,  resting  upon  agriculture, 
handicraft  industries,  and  small  business  undertakings,  had  its 
own  justification  in  poHtical  philosophy  and  jurisprudence.  The 
government  should  interfere  as  little  as  possible  with  the  right 
of  the  individual  to  buy  and  sell  labor  and  commodities  under 


*  For  the  remainder  of  this  profound  paper,  see  Readings,  p.  50. 
'  Quoted  in  Ford,  Rise  and  Growth  of  American  Politics,  p.  104. 


J 


Social  and  Economic  Legislation  723 

whatever  terms  and  conditions  he  could  secure.  Each  man,  ran 
the  theory,  is  the  best  judge  of  what  is  conducive  to  his  own 
happiness  and  will  pursue  his  own  enjoyment  and  self-interest; 
the  result  will  be  generally  good.  Competition  will  keep  prices 
down  within  a  reasonable  distance  from  the  cost  of  produc- 
tion, and  any  individual,  by  thrift  and  industry,  may  secure 
the  small  amount  of  capital  necessary  to  start  in  busmess  for 
himself. 

Jefferson  was  the  leading  exponent  of  this  doctrine  and  looked 
with  unconcealed  disKke  upon  the  party  of  strong  government 
led  by  Hamilton  who  was  willing  to  use  the  poHtical  system  to 
restore  public  credit  and  to  advance  the  interests  of  manufac- 
turers, merchants,  and  shippers  by  protective  tariffs.  In  po- 
litical theory,  though  by  no  means  in  political  practice,  the 
doctrine  of  Jefferson  triumphed;  and  the  notion  of  the  less 
government  the  better  for  the  people  assumed  the  leading  place 
in  American  politics. 

In  many  ways,  accordingly,  our  state  governments  have  fa- 
vored the  development  of  the  class  of  small  property  owners  to 
whose  interests  the  individualistic  doctrine  of  the  eighteenth 
century  corresponds;  and  at  the  same  time  they  have  tried  to 
restrain  the  growth  of  corporate  and  other  forms  of  enterprises 
tending  to  concentrate  wealth  in  the  hands  of  a  small  minority. 
A  few  states,  notably  California,  Florida,  Montana,  and  Texas, 
have  sought  to  maintain  a  class  of  small  farmers  by  providing 
that  public  lands  shall  be  sold  or  granted  only  to  actual  settlers. 
According  to  the  constitution  of  California,  "the  holding  of 
large  tracts  of  land  uncultivated  and  unimproved  by  individuals 
or  corporations  is  against  the  public  interest  and  should  be  dis- 
credited by  all  means  not  inconsistent  with  the  rights  of  private 
property.  Lands  belonging  to  this  state  which  are  suitable  for 
cultivation  shall  be  granted  only  to  actual  settlers  and  in  quan- 
tities not  exceeding  320  acres  to  each  settler."  The  amount  of 
public  land  to  be  granted  to  single  individuals  and  families  is 
strictly  limited  in  several  other  states;  and  the  laws  of  all  states 
have  abolished  the. ancient  system  of  primogeniture,  according 
to  which  the  landed  estate  will  pass  always  to  the  eldest  male 
heir  so  that  it  may  be  prevented  from  being  broken  into  small 
pieces.  "Perpetuities  and  monopolies,"  runs  the  constitution  of 
Oklahoma,  "are  contrary  to  the  genius  of  a  free  government 


724  American  Government  and  Politics 

and  shall  never  be  allowed,  nor  shall  the  law  of  primogeniture  or 
entailments  ever  be  enforced  in  this  state."  A  few  states  even 
Kmit  the  term  of  years  for  which  agricultural  land  may  be  leased; 
and  Oklahoma  expressly  forbids  the  creation  of  any  corporation 
in  the  state  for  the  purpose  of  buying,  acquiring,  or  dealing  in 
agricultural  lands. 

While  thus  endeavoring  to  encourage  widespread  diffusion 
of  farming  lands,  the  states  have  at  the  same  time  lent  support 
to  the  class  of  small  traders,  merchants,  and  manufacturers  by 
restraining  the  absorbing  power  of  great  corporations  and  com- 
binations. Consequently,  in  most  states,  if  not  in  all  of  them, 
combinations  and  trusts  to  enhance  prices  and  restrain  trade  or 
in  any  way  control  the  prices  of  commodities  or  the  charges  of 
common  carriers  are  expressly  prohibited  and  declared  to  be 
unlawful  and  against  public  poHcy.^  "Free  and  fair  competition 
in  the  trades  and  industries,"  declares  the  constitution  of  New 
Hampshire,  "is  an  inherent  and  essential  right  of  the  people  and 
should  be  protected  against  all  monopolies  and  conspiracies  which 
tend  to  hinder  or  destroy  it."  Several  other  state' constitutions 
lay  upon  the  legislature  the  imperative  duty  of  enacting  such 
laws  as  may  be  necessary  to  prevent  trusts,  pools, .  combines, 
and  other  organizations  from  enhancing  prices  of  commodities, 
restraining  competition  in  the  various  trades  and  industries, 
and  otherwise  blocking  "the  natural  process  of  reasonable  com- 
petition." In  their  endeavor  to  maintain  the  individualist  sys- 
tem of  competition,  our  state  legislatures  have  loaded  our  statute 
books  with  laws  imposing  heavy  fines  and  penalties  upon  persons 
and  associations  seeking  to  restrain  trade  in  any  form. 

The  Control  of  Corporations 

It  must  be  noted,  however,  that  there  is  a  difference  between 
a  combination  striving  to  monopolize  any  particular  interest  or 
group  of  interests  and  mere  corporations  which,  however  large 
they  may  be,  do  not  necessarily  constitute  monopolies,  although 
they  may  always  show  a  tendency  in  that  direction.  Our  state 
lawmakers  have  gradually  come  to  perceive  this  distinction,  and 
while  attempting  to  restrain  monopohes,  have  recognized  the 

^  Such  combinations  in  restraint  of  trade  were,  of  course,  illegal  at  com- 
mon law. 


Social  and  Economic  Legislation  725 

function  of  corporations  in  modern  economy,  and  have  devised 
elaborate  schemes  of  law  to  control  their  creation,  management, 
and  operation. 

1.  In  the  beginning  of  our  history  it  was  the  practice  of  the  state 
legislature  to  create  each  corporation  by  a  separate  law,  but  the 
abuses  connected  with  this  method  were  so  great  that,  as  a  general 
rule,  the  legislature  is  now  forbidden  to  create  corporations  by 
special  act,  and  is  authorized  to  pass  only  general  laws  providing 
equal  terms  for  all  corporations.^  According  to  the  constitution 
of  New  York  corporations  may  be  formed  under  general  laws  and 
will  be  created  by  special  act  only  for  municipal  purposes  or  in 
cases  where,  in  the  judgment  of  the  legislature,  the  objects  of 
the  corporation  cannot  be  attained  under  the  general  law. 
Delaware  has  sought  to  control  the  process  of  chartering  corpora- 
tions by  stipulating  that  general  and  special  corporation  laws 
must  have  the  approval  of  two-thirds  of  all  the  members  elected 
to  each  house  of  the  legislature.  Georgia  has  provided  that  all 
corporate  powers  and  privileges  granted  to  banking,  insurance, 
railroad,  canal,  navigation,  express,  and  telegraph  companies 
shall  be  issued  by  the  secretary  of  state  in  accordance  with  the 
provisions  of  law  laid  down  by  the  legislature.  In  Virginia 
the  corporation  commission,  appointed  by  the  governor  of  the 
state,  issues  all  charters  and  amendments  of  charters  for  domestic 
corporations  and  all  Ucenses  to  foreign  corporations  authorizing 
them  to  do  business  in  the  state.  Whatever  may  be  the  device 
adopted  to  control  the  creation  of  corporations  the  aim  is  always 
the  same  —  to  obstruct  the  state  legislature  in  granting  special 
favors  to  particular  corporations. 

2.  In  order  to  prevent  corporations  once  chartered  from 
claiming  perpetual  rights  under  that  clause  of  the  federal  Con- 
stitution forbidding  states  to  impair  the  obligation  of  contract,^ 
our  state  constitutions  now  make  provision  for  the  future  amend- 
ment, repeal,  or  alteration  of  general  and  special  laws  under  which 
corporations  may  be  created.  Some  states  expressly  forbid 
the  irrevocable  grant  of  any  franchise,  privilege,  or  immunity. 
"No  law,"  declares  the  constitution  of  Alabama,  "making  any 
irrevocable  or  exclusive  grants  of  special  privileges  or  immunities, 
shall  be  passed  by  the  legislature;  and  every  grant  of  a  franchise, 
privilege,  or  immunity  shall  forever  remain  subject  to  revocation, 

'  See  Readings,  p.  86  and  p.  458.  *  See  above,  p.  434. 


726  American  Government  and  Politics 

alteration,  or  amendment."  Nevertheless,  some  provision  is 
included  in  many  state  constitutions  to  the  effect  that  the  right 
of  repealing  and  amending  corporation  charters  and  privileges 
cannot  be  so  exercised  as  to  impair  or  destroy  vested  rights  or 
work  injustice  to  the  parties  concerned.  Subject  to  the  Hmita- 
tion  that  vested  property  rights  must  not  be  impaired,  the  state 
legislature  possesses  the  power  to  regulate  the  operations  of  cor- 
porations after  they  have  once  been  created. 

3.  The  internal  management  of  corporations  is  controlled  by 
the  constitutions  and  laws  of  most  states.  In  order  to  secure  to 
stockholders  their  individual  rights,  several  states  —  California, 
Illinois,  Missouri,  and  Nebraska,  for  example  —  have  declared 
that  each  stockholder  shall  have  one  vote  for  each  share.  Ac- 
cording to  the  Nebraska  constitution  the  "  legislature  shall  pro- 
vide by  law  that  in  all  elections  for  directors  or  managers  of  in- 
corporated companies  every  stockholder  shall  have  the  right  to 
vote  in  person  or  by  proxy  for  the  number  of  shares  of  stock 
owned  by  him  for  as  many  persons  as  there  are  directors  or  man- 
agers to  be  elected,  or  to  cumulate  said  shares  and  give  one  can- 
didate as  many  votes  as  the  number  of  directors  multiplied  by  the 
number  of  his  shares  of  stock  shall  equal,  or  to  distribute  them 
upon  the  same  principle  among  as  many  candidates  as  he  shall 
think  fit  and  such  directors  or  managers  shall  not  be  elected  in 
any  other  manner."  In  some  instances  the  directors  of  corpora- 
tions are  made  liable,  jointly  and  severally,  both  to  creditors  and 
to  stockholders  for  all  moneys  embezzled  or  misappropriated  by 
the  officers  of  such  corporation  during  their  term  as  directors 
or  trustees. 

4.  To  prevent  stock-watering  it  is  frequently  provided  by  law 
that  corporations  shall  not  issue  stock  except  for  money,  labor 
done,  or  property  actually  received  to  the  amount  of  its  par 
value;  that  stock  and  bonded  indebtedness  shall  not  be  increased 
except  in  accordance  with  the  general  law  and  the  consent  of  the ; 
persons  holding  the  larger  amount  in  value  of  the  stock ;  and  that 
fictitious  issues  of  stock  and  indebtedness  shall  be  deemed  void. 
In  those  states  which  have  public  service  commissions,  it  is  a 
common  requirement  that  any  corporation  wishing  to  issue  stocks 
and  bonds  must  file  with  the  commission  a  sworn  and  accurate 
statement  showing  the  exact  purposes  for  which  the  said  stocl; 
and  bonds  are  to  be  issued  and  must  obtain  proper  authorization 


Social  and  Economic  Legislation  727 

5.  The  consolidation  or  combination  of  competing  corpora- 
tions is  either  forbidden  ahogether,  or  permitted  under  strict 
regulation.  In  Oklahoma,  no  public  service  corporation  can 
consolidate  its  stock,  property,  or  franchises  with,  or  lease  or 
purchase  the  works  or  franchises  of,  any  corporation  owning  or 
having  under  its  control  a  competing  or  parallel  line  —  except 
by  legislative  enactment  upon  recommendation  of  the  state  cor- 
poration commission;  and  furthermore  no  corporation,  chartered 
or  licensed  to  do  business  in  that  state,  may  own  or  control  in 
any  manner  whatever  the  stock  of  any  competing  corporation  or 
corporations  engaged  in  the  same  kind  of  business,  except  such 
stock  as  may  be  pledged  in  good  faith  to  secure  bona-fide  indebt- 
edness. Montana  expressly  declares  that  no  corporation,  com- 
pany, person,  or  association  of  persons  in  the  state  shall  directly 
combine  or  form  what  is  known  as  a  trust. 

6.  Railway  corporations  and  common  carriers  are  controlled 
by  special  regulations  so  numerous  and  complicated  in  character 
that  only  a  few  of  the  general  principles  may  be  stated  here. 
Many  states  declare  railways  to  be  public  highways  and  "free 
to  all  persons  for  the  transportation  of  their  persons  or  property 
thereon  under  the  regulations  prescribed  by  law."  The  more 
recent  state  constitutions  expressly  authorize  the  legislature  to 
fix  passenger  and  freight  rates  and  control  railways  generally 
in  such  a  way  as  to  prevent  unjust  discriminations  and  maintain 
certain  standards  of  service.  According  to  the  constitution  of 
Nebraska,  for  example,  the  legislature  is  instructed  to  prevent 
abuses  and  unjust  discrimination  and  extortion  by  all  express, 
telegraph,  and  railroad  companies  in  the  state  and  enforce  such 
laws  by  adequate  penalties  to  the  extent,  if  necessary  for  that 
purpose,  of  forfeiture  of  property  and  franchise. 

a.  A  few  years  ago  a  wave  of  railroad  rate  regulation  swept 
over  the  country  as  the  result  of  the  popular  cry  for  a  reduction 
in  the  passenger  charges.  In  several  states  a  flat  rate  of  from 
two  to  three  cents  a  mile  has  been  fixed  by  the  legislature,  and 
is  in  force.^  In  1907  IlHnois,  Indiana,  Minnesota,  Nebraska, 
and  Pennsylvania  passed  statutes  fixing  the  maximum  passenger 
rate  of  railroads  at  two  cents  a  mile.  During  the  same  year 
Iowa  and  Michigan  passed  rate  bills  classifying  railroads  accord- 
ing to  their  earnings  per  mile.  In  Iowa  the  roads  were  divided 
*  In  New  York  the  two-cent  law  was  vetoed  by  Governor  Hughes. 


728  American  Government  and  Politics 

into  three  classes,  earning  $4000  per  mile,$35oo  to  $3000,  and  less 
than  $3000  per  mile;  and  the  rate  fixed  at  two  cents,  two  and  a 
half  cents,  and  three  cents  per  mile  respectively.  West  Virginia 
and  Missouri  based  the  scale  of  rates  upon  the  mileage  of  each 
road  affected.  North  Carolina  fixed  the  rate  at  two  and  a  half 
cents.  Alabama  and  South  Dakota  fixed  the  maximum  rate  at 
two  and  a  half  cents,  but  authorized  the  railway  commission  to 
make  certain  classifications  of  the  roads.* 

b.  Railroads  are  now  quite  commonly  forbidden  to  discrimi- 
nate in  their  charges  or  facilities  between  places  or  persons  or 
in  the  transportation  of  the  same  classes  of  freight;  to  issue  free 
passes  to  state  officials  and  members  of  the  state  legislature;  ^ 
to  grant  rebates  and  bonuses;  and  to  deny  individuals,  associa- 
tions, and  corporations  similarly  situated  equal  rights  in  the  trans- 
portation of  persons  or  property.  Most  states,  either  by  constitu- 
tional or  statute  law,  provide  some  system  of  pubHcity  whereby 
each  railway  company  is  required  to  maintain  a  pubUc  office 
and  publish  from  time  to  time  statistics  relative  to  its  business, 
profits,  dividends,  transfer  of  stock,  and  the  like.  Railroads  are 
compelled  to  maintain  fences,  regulate  grade  crossings,  put  in 
switches  under  certain  conditions,  adopt  safety  appliances,  heat 
and  Hght  their  cars,  and  do  many  other  things  for  the  safety  and 
convenience  of  passengers.  The  list  of  precise  regulations  im- 
posed upon  common  carriers  in  almost  any  state  would  fill  a 
volume  of  reasonable  compass. 

c.  As  the  controversy  over  general  railway  regulation  pro- 
gressed, the  obvious  unfairness  of  the  flat  rate  applying  equally 
to  all  railroads  became  apparent.  As  the  Wisconsin  Railroad 
Commission  in  a  decision  said:  "In  order  to  determine  whether 

^  "The  great  tidal  wave  of  railway  passenger  rate  regulation  began  in 
Ohio  in  1906,  swept  over  the  South  and  Middle  West,  reached  its  height  in 
1907,  and  since  then  has  been  slowly  receding.  The  rising  of  the  wave  was 
marked  by  discontent  with  present  conditions,  a  feeling  of  bitterness,  and  a 
strong  agitation  for  reduction  in  rates.  Its  fall  was  marked  by  injunctions, 
counter-injimctions,  threats,  a  struggle  for  state  rights,  special  sessions,  com- 
promises, court  decisions,  some  bitterness  toward  the  courts,  and  a  realiza- 
tion that  there  had  been  some  hasty  action.  The  laws  have  not  all  been 
contested,  and  where  they  have  been  sometimes  the  state  has  won,  some- 
times the  railroads  have  won,  and  sometimes  the  struggle  has  resulted  in  a 
compromise."  —  R.  A.  Campbell,  in  the  Political  Science  Review  for  August, 
1907,  and  November,  1909.  2  ^leadings,  p.  478. 


Social  and  Economic  Legislation  729 

or  not  a  given  rate  is  excessive  or  otherwise,  it  is  necessary  to 
ascertain:  (a)  the  reasonable  value  of  the  property  of  the  carrier 
as  a  basis  for  the  allowance  of  income  for  investment;  {b)  to 
make  the  apportionment  to  the  state  of  its  proper  proportion  of 
the  earnings  and  operating  expenses  of  the  company;  (c)  to  ascer- 
tain what  portion  of  the  gross  earnings  for  the  state  are  derived 
from  intra-state  and  what  from  interstate  traffic;  (d)  to  apportion 
on  some  equitable  basis  the  expenses  of  conducting  traffic  and 
other  legitimate  expenses  between  the  two  classes  of  traffic." 

In  order,  therefore,  to  be  more  just  in  controlling  rates  and 
facilities  furnished  by  common  carriers,  the  constitutions  and  laws 
of  a  few  states  have  ordered  the  physical  valuation  of  railroad 
property.  In  Oklahoma  the  corporation  commission  must  as- 
certain and  keep  as  a  matter  of  public  record  the  amount  of  money 
expended  in  the  construction  and  equipment  per  mile  of  every 
railroad  and  pubUc  service  corporation  in  the  state,  the  amount 
of  money  expended  to  secure  the  right  of  way  and,  furthermore, 
the  amount  of  money  it  would  require  to  reconstruct  the  road- 
bed,- track,  depots,  and  transportation  facilities,  and  to  replace 
all  the  physical  properties  belonging  to  the  railroad  or  pubUc 
service  corporation.  The  commission  must  also  ascertain  the 
outstanding  bonds,  debentures,  and  indebtedness  and  the  amount 
thereof;  when  issued  and  the  rate  of  interest;  when  due;  for 
what  purposes  issued;  how  used;  to  whom,issued;  to  whom  sold, 
and  the  price  in  cash,  property,  or  labor  (if  any)  received  therefor; 
what  became  of  the  proceeds;  by  whom  the  indebtedness  is  held, 
and  the  amount  purporting  to  be  due  thereon;  the  floating  in- 
debtedness of  the  company,  to  whom  due  and  the  residence  of 
the  creditor;  the  credits  due  on  it;  the  property  on  hand;  and, 
finally,  the  judicial  or  other  sales  of  the  said  road,  its  property 
or  franchises  and  the  amounts  purporting  to  be  paid  therefor. 
After  having  thoroughly  analyzed  the  physical  structure  of  the 
system,  the  commission  must  ascertain  the  salaries  and  wages 
paid  by  the  railroads  and  public  service  corporations. 

d.  Our  state  lawmakers,  however,  are  not  satisfied  with  laying 
down  minute  regulations  to  be  obeyed  by  common  carriers. 
They  find  it  impossible  to  control,  by  positive  enactment,  all  of 
the  multifarious  operations  of  railway  and  other  public  service 
corporations,  and  they  have  discovered  also  that  the  same  rule 
cannot  be  appUed  equally  to  all  companies  in  all  parts  of  the  state. 


730  American  Government  and  Politics 

Consequently  within  recent  years  we  have  seen  the  creation  of 
corporation  commissions  variously  described  as  public  service 
commissions,  corporation  commissions,  and  railroad  commis- 
sions. A  public  service  commission  usually  consists  of  from 
three  to  five  members  —  in  the  eastern  states  generally  ap- 
pointed by  the  governor  and  in  the  West  and  South  quite  fre- 
quently elected  by  popular  vote.^ 

The  powers  of  the  public  service  commissions  vary  from  state 
to  state,  but  the  general  character  of  this  new  method  of  public 
service  control  can  be  gathered  from  an  examination  of  the  recent 
statute  of  New  York.  By  that  law  the  state  is  divided  into  two 
districts,  the  first  including  what  is  known  as  Greater  New  York 
*and  the  second  the  remainder  of  the  state,  and  in  each  district 
there  is  a  commission  of  five  members  appointed  by  the  governor 
with  the  approval  of  the  senate  and  removable  by  the  governor, 
"for  inefficiency,  neglect  of  duty,  or  misconduct  in  ofiice,"  after 
charges  are  preferred  and  an  opportunity  to  be  heard  granted. 

Subject  to  the  supervision  of  the  commission  are  all  common 
carriers;  that  is,  all  railway,  street  railway,  express,  car,  sleeping 
car,  and  freight  line  companies  and  "all  persons  and  associations 
of  persons  whether  incorporated  or  not,  operating  such  agencies 
for  public  use  in  the  conveyance  of  persons  or  property."  ^ 

All  such  common  carriers  are  required  to  furnish  safe  and  ade- 
quate services  and  facilities  at  reasonable  and  just  charges  not 
exceeding  the  limits  allowed  by  law  or  the  orders  of  the  com- 
mission. Common  carriers  must  keep  open  for  public  inspection 
their  schedules  showing  rates  and  fares  and  charges;  they  must 
grant  no  rebates  or  unjust  discrimination  or  unreasonable  pref- 
erences; they  must  grant  no  free  passes  except  to  certain  specified 
persons.  They  cannot  assign,  transfer,  or  lease  franchises,  or 
acquire  the  stocks  and  bonds  of  other  common  carriers,  or  issue 
stocks,  bonds,  or  other  evidences  of  indebtedness  without  the 
approval  of  the  commission.  The  commission  is  especially  em- 
powered to  inquire  into  the  general  condition  and  management 
of  all  common  carriers;  to  examine  their  books  and  papers;  to 
investigate  accidents;  to  fix  rates  and  services;  to  order  repairs 
and  improvements  designed  to  secure  adequate  services;  to  order 
changes  in  time  schedules;  to  inspect  gas  and  electric  meters  and 

^  See  above,  p.  508. 

^  It  is  now  (1910)  proposed  to  include  a  number  of  other  corporations. 


Social  and  Economic  Legislation  731 

fix  gas  and  electric  rates.  The  provisions  of  the  law  are  enforced 
by  drastic  penalties;  ''  every  day's  violation  constitutes  a  separate 
and  distinct  offence  "  involving  a  penalty  of  $5000  for  common 
carriers  and  $1000  for  corporations  other  than  common  carriers. 

It  is  evident  from  this  necessarily  brief  and  fragmentary  review 
of  recent  legislation  controlling  corporations  that  our  states  are 
engaging  in  a  gigantic  undertaking  requiring  the  highest  type 
of  administrative  abihty;  for,  controlling  a  vast  network  of  rail- 
ways with  their  complex  and  bewildering  processes  is  a  task 
almost  as  great  as  their  actual  operation.  The  investigations  of 
the  commissions  and  their  studies  in  railway  management,  their, 
supervision  of  railway  accounting,  and  their  control  of  schedules 
and  charges  have  given  to  the  government  an  insight  into  their 
business  practices  which  could  have  been  secured  in  no  other  way. 
Whether  this  new  form  of  government  interference  in  corporate 
enterprise  be  regarded  as  a  barrier  to  sociaUsm  or  as  a  step  in  the 
direction  of  government  ownership,  it  cannot  be  denied  that  it  is 
requiring,  and  will  in  time  develop,  a  high  degree  of  administrative 
ability  which  is  indispensable  to  any  solution  of  the  large  prob- 
lem of  the  relation  of  government  to  industry.^ 

7.  Banking  and  insurance  corporations,  like  common  carriers, 
are  also  usually  subjected  to  special  state  control.  For  example, 
the  consoUdated  banking  law  of  New  Yprk,  covering  almost 
150  closely  printed  pages,  contains  the  most  elaborate  details 
regulating  the  establishment  of  savings-banks,  trust  companies, 
loan  associations,  building  associations,  mortgage,  loan,  and  in- 
vestment corporations,  safety  deposit  companies  and  personal 
loan  associations,  as  well  as  the  ordinary  banking  corporations. 

This  law  provides  for  the  estabhshment  of  a  banking  depart- 
ment under  the  state  superintendent  of  banks  (appointed  by 
the  governor  and  the  senate)  who  is  charged  with  the  execution 
of  the  laws  relative  to  banking  corporations  and  associations. 
He  is  instructed  to  examine,  either  personally  or  through  some 
competent  examiners,  every 'bank  and  trust  concern  at  least 
twice  each  year  and  every  savings-bank  at  least  once  in  two  years, 
making  inquiry  into  the  conditions  and  resources  of  the  corpora- 
tion, its  mode  of  conducting  business,  the  investment  of  its  funds, 
the  safety  of  its  management,  and  the  security  afforded  to  those 

^  On  this  subject,  see  Proceedings  of  the  American  Political  Science  Asso- 
ciation  (1907),  pp.  287  fif. 


732  American  Government  and  Politics 

by  whom  its  engagements  are  held.  So  strict  are  the  terms  of 
the  law  and  so  rigid  is  the  investigation  that  deposits  in  the 
savings-banks  of  New  York  are  as  safe  as  money  invested  in 
government  bonds.  The  state  of  Oklahoma,  however,  has  gone 
even  farther  by  passmg  a  law  requiring  the  banking  institutions 
of  the  state  to  contribute  to  a  state  fund  which  is  used  to  guarantee 
depositors  so  that  in  case  a  bank  fails  the  depositors  may  look 
to  the  state  for  repayment. 

New  York  also  has  a  code  of  insurance  law  (more  than  150 
closely  printed  pages)  which  provides  for  the  most  detailed  regu- 
lation of  every  form  of  insurance,  under  supervision  of  a  state 
department  in  charge  of  the  state  superintendent  of  insurance 
appointed  by  the  governor  and  the  senate  and  charged  with 
the  function  of  making  periodical  examinations  into  the  conduct 
of  insurance  corporations. 

Labor  Legislation 

The  great  inventions  which  revolutionized  industry  have  made 
inevitable  not  only  large  corporations  and  combinations;  they 
have  created  a  new  class  in  society  —  the  working  class  —  de- 
pendent entirely  upon  the  sale  of  labor  power  to  the  owners 
of  the  machinery  of  production  —  in  general  a  tooUess,  property- 
less,  and  homeless  class.^  With  the  development  of  this  class 
have  come  many  special  problems,  undreamt  of  by  the  framers 
of  the  American  system  of  government.  Like  all  other  classes 
in  the  course  of  human  history,  the  working  class  has  interests 
and  ideals  of  its  own,  and  is  demanding  from  the  state  security 
and  protection. 

As  the  doctrines  of  divine  right  formerly  had  no  permanent 
validity  for  the  rising  middle  class,  so  the  doctrines  of  individual 
liberty  —  trial  and  indictment  by  jury  and  due  process  of  law  — 
do  not  have  the  same  reality  to  the  working-man  that  they  have 
to  members  of  the  possessing  group.  Freedom  of  contract 
between  an  employer  and  an  employee  with  a  few  days'  supplies 
behind  him  obviously  cannot  have  the  same  meaning  that  it 
has  between  persons  similarly  situated  as  far  as  economic  goods 
are  concerned.  To  discourse  on  the  liberty  afforded  by  jury 
trial  to  a  man  who  has  never  appeared  in  a  court  but  often  suffers 


See  above,  p.  633,  note. 


J 


Social  and  Economic  Legislation  ^^i^ 

from  considerable  periods  of  unemployment  is  to  overiook  the 
patent  fact  that  hberty  has  economic  as  well  as  legal  elements. 

Quite  naturally  this  new  industrial  democracy  is  evolving  a 
poHtical  philosophy  of  its  own,  confused  and  inarticulate  in  divers 
ways,  but  containing  many  positive  elements  ranging  from  minor 
modifications  of  the  labor  contract  to  the  sociahst  doctrine  that 
the  passive  ownership  of  property  is  merely  a  special  privilege 
to  be  eUminated  by  the  use  of  the  government  as  the  collective 
instrument  for  the  administration  of  all  important  forms  of  con- 
crete capital.  With  the  large  impHcations  of  this  new  philosophy, 
the  student  of  politics  need  not  tarry  unless  he  is  of  a  speculative 
turn  of  mind,  but  its  concrete  manifestations  in  the  form  of  labor 
parties  and  labor  legislation  and  the  precise  nature  and  points 
of  working-class  pressure  on  existing  governmental  functions  con- 
stitute a  new  and  important  branch  of  research  and  exposition. 

GeneraHzing  from  a  survey  of  the  labor  legislation  of  the 
different  states,  we  may  say  that  the  most  important  laws  fall 
into  the  following  groups: 

(i)  While,  in  general,  adult  male  working-men  are  supposed 
to  be  able  to  take  care  of  themselves  in  the  struggle  for  existence, 
our  more  advanced  commonwealths  have  some  legislation  re- 
lating to  this  division  of  the  working  class.  About  one-third 
of  the  states,  including  CaHfornia,  Indiana,  Massachusetts, 
Minnesota,  New  York,  and  Pennsylvania,  have  established  a 
compulsory  eight-hour  day  for  labor  on  public  works.  A  recent 
amendment  to  the  constitution  of  New  York,  for  example, 
provides  that  the  legislature  may  regulate  and  fix  the  wages  or 
salaries,  the  hours  of  work  or  labor,  and  make  provision  for  the 
protection,  safety,  and  welfare  of  persons  employed  by  the  state 
or  by  any  county,  city,  town,  or  civil  subdivision  of  the  state, 
or  by  any  contractor  or  subcontractor  performing  work,  labor,  or 
services  for  the  state  or  any  city,  county,  town,  village,  or  other 
civil  division. 

The  hours  of  labor  in  certain  special  employments  are  also 
regulated  by  law  in  a  few  states;  for  example,  in  Colorado  the 
constitution  provides  for  an  eight-hour  day  in  mines,  smelters, 
underground  work  generally,  and  in  certain  dangerous  employ- 
ments. During  the  year  1907  no  less  than  twenty- three  states 
passed  laws  regulating  the  hours  for  certain  groups  of  adult  male 
working-men.   These  acts  limited  the  hours  of  labor  of  conductors, 


734  American  Government  and  Politics 

engineers,  firemen,  and  other  employees  engaged  in  railway 
business.  In  Indiana,  Iowa,  Minnesota,  Washington,  Wisconsin, 
and  a  few  other  states  the  maximum  number  of  hours  for  such 
employees  was  fixed  at  sixteen,  and  in  the  case  of  Oregon,  at 
fourteen,  per  day.  During  the  same  year  ten  states  fixed  the 
hours  of  labor  for  telegraph  and  telephone  operators  and  train 
despatchers,  making  the  maximum  in  some  instances  eight  hours 
and  in  others  sixteen  hours;  and  a  federal  statute  was  passed 
limiting  the  hours  of  labor  of  the  railway  employees  to  sixteen 
per  day,  so  far  as  interstate  commerce  was  involved,  and  subject 
to  the  provision  that  whenever  the  state  laws  establish  a  less 
number  of  hours  as  a  maximum  the  federal  law  should  not  apply. ^ 

In  regulating  the  hours  of  adult  labor  state  legislatures  con- 
stantly have  to  take  into  account  the  principles  appHed  by  the 
federal  Supreme  Court  in  protecting  private  rights.  For  example, 
a  law  of  New  York  fixing  the  hours  of  labor  in  bakeries  at  not 
more  than  sixty  per  week,  or  ten  hours  a  day,  was  declared  un- 
constitutional by  that  Court.^ 

(2)  The  women  and  children  form  a  separate  division  of  the 
working  class  and  are  safeguarded  by  special  laws.  About  one- 
half  of  the  states,  including  Colorado,  Connecticut,  Massachusetts, 
Nebraska,  New  York,  Pennsylvania,  and  Wisconsin,  have  Hmited 
the  hours  of  labor  for  women  in  the  important  branches  of  in- 
dustry. The  precise  number  of  hours  vary  from  state  to  state, 
but  at  the  present  time  the  general  tendency  is  to  fix  it  at  about 
sixty  per  week.  The  law  of  Tennessee,  passed  in  1907,  provided 
for  a  gradual  reduction  of  the  hours  for  women  to  sixty-two  per 
week  after  January  i,  1908;  sixty-one  per  week  after  January 
I,  1909;  and  sixty  after  January  i,  19 10.  The  Massachusetts 
law  not  only  .fixes  a  maximum  number  of  hours  per  week  for 
women  employed  in  certain  industries,  but  also  forbids  the  em- 
ployment of  women  between  6  p.m.  and  6  a.m.  in  textile  manu- 
facturing estabUshments. 

With  a  few  exceptions  every  state  in  the  Union  prohibits  the 
employment  of  children  under  a  certain  age  in  factories,  and 
furthermore  hmits  the  hours  of  those  children  (above  the  age 

*  In  addition  to  regulating  the  hours  of  labor  a  number  of  states  have 
provided  pension  funds  for  certain  classes  of  public  servants,  such  as  firemen, 
teachers,  policemen,  and  library  employees. 

'  See  Readings,  p.  617. 


J 


Social  and  Economic  Legislation  735 

limit)  actually  employed.     Night  work  for  children  is  also  for- 
bidden in  the  most  progressive  industrial  commonwealths. 

Within  the  last  decade  we  have  made  decided  advances  in 
our  child-labor  legislation.  In  the  year  1907,  for  example, 
measures  restricting  the  employment  of  children  were  passed  in 
no  less  than  twenty-eight  states.  In  that  year  a  number  of 
southern  states,  including  Alabama,  Florida,  North  CaroHna, 
South  Carolina,  and  Tennessee,  which  had  been  backward 
hitherto,  passed  new  laws  affecting  the  employment  of  children 
in  manufacturing  estabUshments. 

The  law  of  New  York  now  in  force  provides  that  no  child  may 
be  permitted  to  work  in  a  factory  without  a  certificate  showing 
that  he  is  fourteen  years  old  or  upwards  and  is  a  pubhc  school 
graduate  or  has  pursued  an  equivalent  course  of  study.  No  child  ^ 
may  be  employed  in  New  York  factories  before  eight  o'clock 
in  the  morning  or  after  five  o'clock  in  the  afternoon  or  for  more 
than  eight  hours  in  any  one  day  or  more  than  six  days  in  any  one 
week,  with  some  exceptions.  No  child  under  sixteen  years  of  age 
may  work  in  any  mine  or  quarry  in  the  state,  and  no  female  may 
be  employed  in  any  such  industries.  No  child  under  the  age  of 
sixteen  may  work  in  any  mercantile  establishment,  business 
office,  telegraph  office,  restaurant,  hotel,  apartment  house,  or  in 
the  distribution  or  transmission  of  merchandise  or  messages  for 
more  than  fifty-four  hours  in  any  one  week  or  more  than  nine 
hours  in  any  one  day,  or  before  seven  o'clock  in  the  morning  or 
after  ten  o'clock  in  the  evening  of  any  day.^ 

Generally  speaking,  the  child-labor  laws  tend  to  fix  the  mini- 
mum age  Hmit  at  fourteen  and  require  for  each  child  a  certain 
minimum  of  education.  It  has  been  pointed  out,  however,  by  a 
careful  observer  that  the  arbitrary  limit  of  fourteen  or  fifteen 
years  does  not  necessarily  indicate  the  ability  of  a  child  to  engage 
in  regular  employment  and  that  a  physical  test  in  place  of  an 
age  Hmit  would  be  better  calculated  to  safeguard  the  rights  of 
children. 

(3)  While  fixing  certain  standards  of  hours  and  wages  in 
specific  cases,  the  states  now  attempt  to  improve,  by  legislation, 
the  conditions  under  which  work  is  carried  on.     Factories  and 

*  Under  sixteen. 

^  Discrimination  is  made  in  the  regulation  of  child-labor  between  the  larger 
cities  and  the  smaller  cities  and  villages. 


736  American  Government  and  Politics 

workshops  must  be  ventilated;  dangerous  machinery  must  be 
safeguarded;  penalties  are  placed  upon  employers  using  unsafe 
and  improper  scaffolds,  ladders,  and  mechanical  contrivances  in 
building  work;  the  cables  and  gears  of  elevators  must  be  in- 
spected and  maintained  at  certain  standards;  fire  escapes  must 
be  provided  for  factories  more  than  three  stories  in  height; 
suitable  time  must  be  allowed  for  meals  in  factories;  boilers 
generating  steam  and  heat  for  factory  purposes  must  be  kept  in 
good  order  and  periodically  examined;  public  laundry  work  must 
not  be  done  in  Hving  rooms,  and  all  laundries  must  be  kept  in  clean 
condition  and  free  from  vermin  and  impurities  of  a  contagious 
nature;  tenement  houses  cannot  be  used  in  the  manufacture  of 
a  large  number  of  articles,  and  tenement-house  manufacturing 
generally  is  closely  restricted;  certain  standards  of  cleanliness 
must  be  maintained  in  rooms  used  as  bakeries;  mines  must  be 
ventilated,  timbered,  and  provided  with  suitable  outlets;  proper 
sanitary  arrangements  must  be  provided  in  factories  and  mer- 
cantile estabhshments,  —  such  is  the  general  character  of  the 
labor  law  of  New  York,  and  it  has  been  duplicated  in  the  more 
advanced  industrial  states.  Nevertheless,  in  matters  of  this 
kind  we  are  behind  the  most  advanced  nations  of  Europe;  and 
our  laws  are  often  not  enforced. 

(4)  At  the  outset  of  an  examination  of  labor  legislation  rela- 
tive to  compensating  workmen  and  their  families  for  indus- 
trial accidents,  we  are  impressed  with  the  lamentable  conditions 
which  undoubtedly  prevail.  The  situation  is  thus  described  by 
a  careful  student  of  the  labor  problem.  Professor  Seager:  ^ 

Fourth  of  July  orators  delight  to  point  out  the  various  fields  in 
which  we  excel,  but  there  is  one  field  of  which  they  say  very  little, 
and  that  is  that  we  kill  and  injure  more  working-men  in  proportion  to 
the  number  employed  on  our  railroads,  in  our  mines,  and  factories 
than  any  other  country  in  the  world. 

On  our  railroads  three  times  as  many  employees  are  killed  and  five 
times  as  many  are  maimed  each  year  as  on  the  railroads  of  the 
United  Kingdom,  and  the  situation  in  our  coal  mines  is  almost  as  bad, 
for  there  each  year  we  average  a  loss  of  three  and  one-third  out  of 
every  thousand  persons  employed,  whereas  in  England  the  average  is 
two,  in  Germany  two  and  one-half,  while  in  Belgium  the  average  is  one. 

*  In  a  lecture  delivered  in  New  York  City,  in  March,  1910.  I  am  in- 
debted to  Professor  Seager  for  the  privilege  of  using  this  extract. 


Social  and  Economic  Legislation  "Jl'] 

The  prevention  of  these  accidents  is  a  pressing  social  problem, 
but  it  is  not  of  this  that  I  wish  to  speak  to-night,  but  of  the  method 
we  have  of  caring  for  the  100,000  working-men  who  are  maimed,  the 
20,000  widows  and  the  60,000  orphans  that  are  left,  as  a  result  of 
these  accidents.  Our  method  of  caring  for  them  is  neither  just  nor 
generous.  We  leave  them  to  the  mercy  of  a  law  that  has  been  dis- 
carded as  out  of  date  in  practically  every  other  civiHzed  country  but  ours. 

There  are  five  things  in  our  piesent  law  that  are  wrong.  In  the 
first  place,  it  is  fundamentally  wrong  in  principle;  second,  it  fails 
signally  to  remedy  a  serious  social  problem;  third,  it  involves  appalling 
waste;  fourth,  it  embitters  the  relations  between  the  employer  and 
the  employed;  and  fifth,  the  system  is  morally  demoraUzing. 

Statistics  show  that  more  than  one-half  of  the  accidents  that  occur 
are  due  to  the  hazards  of  industry;  they  happen,  not  because  the 
employees  are  careless,  but  because  of  the  nature  of  the  industry. 
Statistics  submitted  by  the  insurance  companies  show  further  that  on 
the  average  not  more  than  forty-five  per  cent  of  the  money  employers 
pay  out  in  premiums  is  actually  paid  to  the  injured  employees  in  the 
settlement  of  claims.  About  one-third  of  this  goes  to  the  lawyers,  the 
result  being  that  only  about  thirty  per  cent  of  what  the  employers' 
Uability  costs  the  employer  is  of  any  benefit  to  the  injured. 

These  and  other  defects  in  the  actual  operation  of  a  system  of  em- 
ployers' UabiHty  based  on  negligence  have  led  all  important  countries 
except  the  United  States  to  abandon  it.  Since  1884,  when  Germany 
introduced  her  compulsory  accident  insurance  system,  twenty  of  the 
leading  nations  of  the  world  have  adopted  the  plan  of  putting  on 
industry  the  cost  of  indemnifying  all  the  victims  of  industrial  accidents 
except  those  who  owe  their  injuries  to  their  own  dehberate  and  wilful 
negUgence. 

The  principal  reason  for  imposing  on  the  employer  the  cost  of 
indemnifying  the  victims  of  all  accidents  is  that  accidents,  as  a  rule, 
are  not  due  to  personal  negUgence,  but  to  the  nature  of  the  industry 
which  the  employer  carries  on  for  his  own  benefit.  The  cost  of  insur- 
ing his  plant  and  machinery  is  now  a  regular  item  in  the  expense  of 
production;  under  a  system  of  workmen's  compensation  the  cost  of 
insuring  employees  from  accidents  becomes  such  an  item. 

The  industry  is  compelled  to  pay  for  men's  maimed  bodies  and 
shortened  lives  in  the  same  way  that  it  pays  for  worn-out  plants  and 
used-up  raw  materials.  Both  are  aUke  costs,  necessary  to  the  prose- 
cution of  industry  for  which  consumers,  for  whose  benefit  industry  is 
carried  on,  should  be  made  to  pay. 

Within  recent  years  the  injustice  of  throwing  the  burden  of 
liability  for  injury  and  death  in  industries  upon  the  defenceless 
3B 


738  American  Government  and  Politics 

working-man  and  his  family  has  been  slowly  recognized  by  state 
lawmakers.  A  few  more  advanced  state  constitutions  stipulate 
that  the  right  of  action  to  recover  damages  for  injuries  resulting 
in  death  shall  never  be  abrogated  and  the  amount  recoverable 
shall  never  be  subject  to  any  statutory  limitation.  Oklahoma 
provides  that  no  such  rights  under  the  constitution  can  ever  be 
waived  by  contract,  expressed  or  impUed,  and  adds  that  the 
defence  of  contributory  negligence  or  assumption  of  risk,^  which 
would  throw  the  burden  upon  the  injured  working-man,  shall  in 
all  cases  whatsoever  be  a  question  of  fact  for  the  jury  to  decide. 

Under  the  common  law  employers  were  only  Hable  for 
damages  when  they  were  themselves  personally  responsible  — 
that  is,  they  were  not  Uable  for  accidents  due  "to  unpreventable 
causes  or  to  the  carelessness  of  the  employee  himself  or,  one  of 
his  fellow-employees."  This  common-law  doctrine  of  the  "  fellow- 
servant,"  so  far  as  it  affects  the  Uability  of  the  master  for  injuries 
resulting  from  acts  or  omissions  of  any  other  servant  or  servants 
of  the  common  master  is,  in  Oklahoma,  expressly  abrogated  as 
to  every  employee  of  every  railroad  company,  street  railroad 
company,  interurban  railroad  company,  and  every  concern  en- 
gaged in  mining. 

The  employers'  HabiUty  law  of  New  York  now  in  force  (1910)^ 
provides  that  an  employee  who,  while  exercising  "due  care  and 
dihgence"  is  injured  by  reason  of  any  defect  in  the  condition  of 
the  ways,  works,  or  machinery  used  by  his  employer  traceable 
to  the  negUgence  of  the  person  responsible  for  their  being  in  a 
proper  state  or  by  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  charged  with  the  superintendence  of  the 
works,  has  the  right  to  compensation  and  remedy  against  the 
employer;  and  in  case  of  death  the  next  of  kin  has  the  right  of 
action.  The  law,  furthermore,  provides  that  an  employee  enter- 
ing upon  or  continuing  in  the  services  of  an  employer  shall  be 
presumed  to  have  assented  to  the  "necessary  risks"  and  no 
others,  and  the  necessary  risks  include  only  those  inherent 
in  the  nature  of  the  business  which  remain  after  the  employer 
has  exercised  due  care  in  providing  for  the  safety  of  his  employees 

^  Above,  p.  560. 

*  There  is  now  in  session  in  New  York  an  Employers'  Liability  Commis- 
sion charged  with  investigating  the  question  and  proposing  reforms  to  the 
legislature. 


Social  and  Economic  Legislation  739 

and  has  complied  with  the  law  affecting  such  business  for  the 
greater  safety  of  his  employees.  The  question  whether  the 
employee  understood  and  assumed  the  risk  of  injury  or  was  guilty 
of  contributory  negligence  by  continuing  in  the  employment  with 
full  knowledge  of  the  risk  of  injury  is  one  of  fact  in  New  York, 
subject  to  the  usual  powers  of  the  CQurt  in  a  proper  case  to  set 
aside  a  verdict  contrary  to  the  evidence.  In  short,  the  judge, 
not  the  jury,  may  say  the  final  word,  subject  of  course  to 
appeal — which  the  poor  workman  cannot  often  afford  to  pros- 
ecute. 

In  other  words,  under  the  law  of  New  York,  as  it  now  stands, 
the  great  burden  of  responsibihty  is  still  thrown  upon  the  work- 
ing-man, and  New  York  in  common  with  other  states  of  the  Union 
is  far  behind  Great  Britain,  where  "employers  are  required  to 
compensate,  according  to  a  fixed  scale,  workmen  or  their  famihes 
for  accidents  sustained  in  connection  with  their  employments  and 
resulting  in  at  least  two  weeks'  disability,  unless  such  accident 
is  due  to  the  serious  and  wilful  misconduct  of  the  workman  him- 
self. "  1  The  result  of  placing  the  responsibility  for  compensa- 
tion upon  employers  in  the  United  Kingdom  has  been  to  compel 
them  to  take  out  policies  in  industrial  insurance  companies  against 
such  risks  and  to  regard  this  insurance  a  part  of  their  normal 
working  expenses,  just  as  fire  insurance  has  been  regarded  for 
many  years. 

(5)  More  than  three-fourths  of  the  states  have  established 
labor  bureaus  and  factory  inspection  for  the  purpose  of  enforcing 
the  provisions  of  the  labor  law  with  regard  to  hours  and  wages, 
and  assisting  in  the  maintenance  of  the  sanitary  and  other 
standards  required  by  legislative  enactment. 

The  law  of  New  York  may  be  taken  as  fairly  typical.  In  that 
state  there  is  a  department  of  labor  in  charge  of  a  commissioner 
who  is  appointed  by  the  governor  and  senate  for  a  term  of  four 
years;  and  in  connection  with  the  department  of  labor  there 
is  a  bureau  of  factory  inspection  headed  by  the  first  deputy  com- 
missioner of  labor.  There  is  also  a  bureau  of  labor  statistics 
in  charge  of  a  chief  statistician,  subject  to  the  direction  and 
supervision  of  the  commissioner  of  labor. 

The  commissioner  of  labor  and  his  deputies  and  agents  may 
administer  oaths  and  take  affidavits  in  matters  relating  to  the 
*  Seager,  Economics:  Briefer  CoursCt  p.  345. 


740  American  Government  and  Politics 

enforcement  of  the  labor  law.  The  commissioner  may  appoint  at 
least  sixty  deputy  factory  inspectors,  divide  the  state  into  dis- 
tricts for  factory  inspection,  and  see  that  the  factories  are  in- 
spected as  often  as  practicable  for  the  purpose  of  enforcing  the 
terms  of  the  law.  Through  the  bureau  of  labor  statistics,^  the 
commissioner  is  ordered  to  collect,  systematize,  and  present  in 
annual  reports  to  the  legislature  statistical  details  relative  to  the 
commercial,  industrial,  social,  and  sanitary  condition  of  working- 
men  and  to  the  productive  industries  of  the  state.^ 

(6)  Several  states  have  made  provision  for  free  public  employ- 
ment offices,  especially  for  the  great  cities,  designed  to  help  reheve 
the  problem  of  unemployment.  It  can  hardly  be  said  that  these 
employment  offices  have  been  very  successful;  and  they  have 
often  been  regarded  with  suspicion  particularly  by  union  work- 
men, ^because  they  may  be  used  by  employers  in  times  of 
strikes  to  secure  non-union  workmen. 

(7)  In  order  to  help  in  preventing  strikes  and  in  mitigating  the 
bitterness  of  industrial  disputes,  more  than  one-half  of  the  states 
have  made  either  constitutional  or  statutory  provision  for  media- 
tion, arbitration,  and  conciliation.  The  Massachusetts  board 
of  arbitration  and  conciliation  was  estabUshed  in  1886.  During 
the  first  eleven  years  of  its  existence  over  three  hundred  indus- 
trial controversies  were  submitted  to  it  for  consideration  and 
action  and  more  than  one-third  of  these  controversies  were 
settled  in  accordance  with  the  recommendations  of  the  board. 

The  law  of  New  York  provides  for  a  bureau  of  mediation  and 
arbitration  in  charge  of  the  second  deputy  commissioner  of  labor 
as  chief  arbiter,  under  the  supervision  of  the  commissioner  of 
labor.    The  law  provides  that  whenever  a  strike  or  lockout  occurs 


*It  appears  that  Massachusetts  was  the  first  state  to  establish  a  bureau 
of  labor  statistics  —  in  1869;  from  1870  to  1879  nine  new  bureaus  were 
created,  from  1880  to  1890  seventeen  bureaus,  and  from  1890  to  1899  nine 
bureaus.    Massachusetts  Labor  Bulletin  (1908)  No.  15,  p.  116. 

2  It  is  a  general  practice  throughout  the  United  States  to  appoint  labor 
commissioners  and  factory  inspectors  from  among  the  workers  of  the  po- 
litical party  in  power.  An  investigation  made  recently  showed  that  prac- 
tically every  labor  commissioner  owed  his  office  to  party  services.  The 
result  of  this  is  great  uncertainty  in  the  tenure  of  office,  with  its  inevitable 
results.  In  order  to  exchange  opinions  and  help  establish  uniformity  in  the  : 
standards  of  labor  legislation  the  chiefs  and  commissioners  of  labor  bureaus  1 
have  formed  a  national  organization  and  hold  annual  conventions. 


Social  and  Economic  Legislation  741 

or  is  seriously  threatened,  a  representative  of  this  bureau  shall, 
if  practicable,  proceed  to  the  locaHty  promptly,  and  endeavor  to 
effect  an  amicable  settlement  by  the  way  of  mediation. 

The  state  board  of  mediation  and  arbitration  consists  of  a 
chief  mediator  as  chairman  and  two  other  officers  of  the  depart- 
ment of  labor  free  at  the  time  to  act.  Any  grievance  or  dispute 
between  an  employer  and  his  employees  may  be  submitted  to  this 
board  for  determination  and  settlement.  Such  submission  must 
be  in  writing  and  contain  a  detailed  statement  of  the  dispute  and 
its  causes,  and  also  an  agreement  to  abide  by  the  determination 
of  the  board  and  to  continue  at  business  or  work  during  the  in- 
vestigation. Upon  such  submission,  it  is  the  duty  of  the  board 
to  hear  testimony  and  investigate  the  matter  in  controversy  and, 
within  ten  days  after  the  completion  of  the  hearing,  render  a 
decision,  a  copy  of  which  is  to  be  served  upon  each  party  to  the 
controversy. 

In  several  states  boards  of  mediation  and  arbitration  may  on 
their  own  initiative  investigate  the  causes  of  industrial  disputes, 
but  in  no  state  has  arbitration  been  made  obligatory  upon  em- 
ployers and  employees.  It  is  difficult  to  estimate  the  services 
which  may  be  rendered  by  these  boards  of  arbitration  and  concilia- 
tion. Such  a  board,  says  Professor  Seager,  "with  power  to  in- 
tervene on  the  instant  it  learns  of  a  labor  dispute  may  at  times 
succeed  in  effecting  a  settlement  by  simply  bringing  the  parties 
together  and  suggesting  possible  bases  of  agreement,  at  the  same 
time  that  it  removes  misunderstandings  and  assuages  wounded 
feeUngs.  Failing  in  this,  it  may,  by  making  public  the  findings  in 
the  case  and  indicating  clearly  the  settlement  which  appears  to 
it  fair,  bring  such  pressure  to  bear  upon  the  less  conciliatory  dis- 
putants that  a  compromise  will  seem  better  than  a  fight  and  a 
prolonged  strike  or  lockout  will  be  avoided.  Thus,  although 
without  power  to  enforce  its  award,  a  state  board  of  conciliation 
and  arbitration  may  often  prevent  strikes  and  lockouts."  ^ 

In  spite  of  all  that  has  been  done  by  our  states  to  improve  the 
condition  of  the  working  class,  the  United  States  lags  far  behind 
the  advanced  countries  of  Europe,  such  as  Germany  and  Great 
Britain.  Several  reasons  have  been  assigned  for  this  backward 
state  of  American  labor  legislation.^    In  the  first  place,  the  Am- 

^  Economics :  Briefer  Course,  p.  318. 

^  See  an  excellent  article  by  B.  M.  Herron,  "Factory  Inspection  in  the 
United  States,"  American  Journal  of  Sociology,  January,  1907. 


742  American  Government  and  Politics 

erican  individualist  doctrine  that  any  man  can  rise  out  of  the 
working  class  has  blinded  the  American'  people  to  the  fact  that, 
however  great  may  be  the  opportunities  for  individuals  to  rise, 
the  working  class  must  yet  remain,  and  that  upon  its  standards 
of  Hfe,  its  intelligence,  and  physical  vitality  the  very  fate  of  the 
nation  depends.  In  the  second  place,  while  the  United  States 
has  been  transformed  into  an  industrial  nation,  the  notion  of  the 
older  agricultural  hfe  that  anybody  has  a  right  to  work  as  long 
as  he  pleases,  under  any  conditions  he  is  willing  to  accept,  has 
pervaded  our  legislatures. 

In  the  third  place,  the  distribution  of  powers  in  our  federal 
system  is  such  that  practically  all  regulation  of  industry  and  labor 
is  vested  in  the  state  governments,  and  each  state  government, 
in  endeavoring  to  improve  the  conditions  of  labor  within  its 
borders,  must  take  into  account  the  fact  that  too  strict  rules  will 
only  result  in  driving  industries  out  into  the  more  backward  states 
where  they  are  not  hampered  by  such  regulations  in  behalf  of 
the  employees.  Finally,  in  the  United  States,  there  is  no  such 
opposition  between  the  representatives  of  organized  capital  and 
the  representatives  of  agricultural  interests  as  existed  in  England 
and  led  the  latter  to  champion  with  great  zeal  labor  legislation 
which  did  not  in  any  way  affect  them  adversely.  Inasmuch  as 
the  working  class  in  the  United  States  has  not,  up  to  this  point, 
seen  fit  to  elect  its  own  special  representatives  in  any  large 
numbers  to  state  legislatures,  it  has  had  to  depend  upon  the 
sympathies  or  fears  of  the  politicians,  and  the  special  laws  which 
it  has  won  have  been  largely  concessions  to  the  labor  vote. 

Public  Health  Standards 

Government  interference  with  private  persons  in  the  mainten- 
ance of  general  standards  of  public  health  and  safety  is  a  matter 
of  comparatively  recent  development.  It  was  not  until  well  on 
toward  the  middle  of  the  nineteenth  century  that  the  health  laws 
of  the  various  states  went  much  farther  than  to  regulate  in  a  very 
ineffective  manner  the  methods  of  controlling  smallpox  and  other 
contagious  diseases. '  The  cholera  epidemic  of  1848  and  1849 
marked  the  awakening  of  pubHc  interest  in  the  whole  question  of 
sanitation  and  its  relation  to  general  welfare.  In  the  latter  year 
Massachusetts  appointed  a  commission  to  investigate  the  sanitary 


Social  and  Economic  Legislation  743 

conditions  of  the  entire  state  and  the  report  of  that  commission 
with  recommendations  for  public  health  boards  Ues  at  the  basis 
of  the  sanitary  regulation  not  only  of  Massachusetts  but  of  many 
other  important  states  in  the  Union.  One  after  another  the 
states  began  to  create  boards  of  health;  and  by  the  close  of  the 
century  forty- two  states  and  territories  had  such  boards.^ 

The  pubHc  health  law  of  a  fairly  advanced  commonwealth 
will  provide  for  a  state  department  of  health  with  large  powers 
and  for  county,  city,  town,  and  village  boards  of  public  health. 
In  New  York  there  is  a  department  of  public  health  headed  by  a 
commissioner,  appointed  by  the  governor  and  senate.  He  is 
charged  with  taking  cognizance  of  the  interests  of  health  and  life 
of  the  people  of  the  state  and  all  matters  appertaining  thereto; 
he  makes  inquiries  into  the  causes  of  diseases;  investigates  the 
sources  of  mortaUty;  studies  the  problem  of  the  effect  of  locali- 
ties, employments,  and  other  conditions  upon  the  health  of  the 
persons  affected;  he  obtains  and  preserves  information  useful  in 
the  discharge  of  his  duties  or  which  may  contribute  to  the  pro- 
motion of  health  and  security  of  life;  he  may  compel  the  attend- 
ance of  witnesses  and  force  them  to  testify  in  matters  before  him; 
he  may  reverse  the  regulations  and  ordinances  of  local  boards  of 
health  under  certain  circumstances. 

The  commissioner  of  health  has  the  power  to  examine  into 
nuisances  and  questions  affecting  the  security  of  Ufe  and  health 
in  any  locality.  On  order  of  the  governor  of  the  state,  he  must 
make  examinations,  and  when  the  governor,  on  the  report  of  the 
commissioner,  discovers  a  pubHc  nuisance  he  may  order  it  to  be 
abated,  or  removed. 

The  health  law  of  New  York  further  provides  for  local  boards 
of  health  and  for  health  officers  in  the  several  cities,  villages, 
and  towns  of  the  state  and  vests  in  them  a  large  and  arbitrary 
power  over  life  and  property  whenever  the  maintenance  of  public 
health  is  at  stake. 

A  complete  pubhc  health  code  will  also  forbid  the  manufacture 
and  sale  of  adulterated  foods  and  drugs.  Under  any  advanced 
law  food  is  regarded  as  adulterated  if  any  substance  has  been 
mixed  with  it  so  as  to  reduce,  lower  or  injuriously  affect  its  quality 
or  strength;  or  if  any  inferior  or  cheaper  substance  or  substances 

*  Reference:  S.  W.  Abbott,  The  Past  and  Present  Conditions  of  Public 
Hygiene  and  Medicine  in  the  United  States,  pp.  9  flf. 


744  American  Government  and  Politics 

have  been  substituted  wholly  or  in  part  for  the  article;  or  if  any 
valuable  constituent  of  the  article  has  been  wholly  or  partly 
abstracted;  or  if  the  article  be  an  imitation  or  sold  under  the 
name  of  some  other  substances;  or  if  it  contains  wholly  or  in  part 
diseased  or  decomposed  animal  or  vegetable  substances,  whether 
manufactured  or  not,  or,  in  the  case  of  milk  foods,  is  a  product  of 
diseased  animals.  Most  health  laws  further  provide  for  main- 
taining certain  standards  in  drugs  and  for  a  certain  degree  of 
purity  in  Uquors  and  confectionery. 

The  department  of  health  frequently  takes  cognizance  of  the 
interests  of  public  health  as  affected  by  the  sale  or  use  of  food  and 
drugs  and  adulterations  thereof  and  makes  all  necessary  in- 
quiries and  investigations  relating  thereto. 

The  health  law  of  New  Yo  k  also  regulates  and  provides  for  the 
inspection  of  all  the  potable  waters  in  the  state  so  as  to  prevent 
contamination  from  sewage  and  other  sources;  it  creates  a  quar- 
antine and  a  health  officer  at  the  port  of  New  York;  it  regulates 
the  practice  of  medicine,  dentistry,  veterinary  medicine,  and 
surgery  ;  it  provides  for  the  registration  and  regulation  of  phar- 
macies and  drug  stores;  the  supervision  of  the  practice  of  chirop- 
ody, undertaking  and  embalming,  and  optometry;  the  vaccina- 
tion of  school  children;  and  the  visitation  of  institutions  for 
orphans,  destitute,  or  vagrant  children  or  juvenile  delinquents. 
I  Closely  connected  with  the  health  law  of  the  state  are  the 
provisions  controUing  the  construction  and  maintenance  of 
tenements.  A  well-developed  tenement-house  law  will  require 
certain  precautions  against  fire  through  regulations  relative  to  the 
construction  of  halls,  stairways,  and  fire-escapes;  it  will  define 
the  percentage  of  a  lot  which  may  be  occupied  by  buildings  and 
define  the  minimum  of  fight  and  ventilation.  The  law  of  New 
York,  for  example,  prescribes  the  minimum  of  window  area  for 
each  room  in  new  tenement-houses  and  also  the  minimum  size  of 
rooms;  regulates  minutely  the  sanitary  accommodations  to  be 
provided  for  tenements;  endeavors  to  maintain  certain  stand- 
ards of  cleanfiness  by  penafizing  landlords  who  neglect  their 
property.  The  right  to  commence  new  buildings  and  to  alter  the 
structure  of  old  buildings  in  the  large  cities  is  always  subjected  to 
some  control  by  the  tenement-house  or  health  department. 


Social  and  Economic  Legislation  745 


Public  Charities 

All  the  states  in  the  Union  make  more  or  less  provision  for 
central  and  local  institutions  for  the  public  care  of  the  insane, 
deaf  and  dumb,  blind,  and  other  defectives  who  are  without  pri- 
vate means.  The  constitution  of  Oklahoma  provides  that  educa- 
tional, reformatory,  and  penal  institutions  and  those  for  the 
benefit  of  the  insane,  blind,  deaf  and  mute,  and  such  other  insti- 
tutions as  the  pubHc  good  may  require,  shall  be  established  and 
supported  by  the  state  in  such  manner  as  the  legislature  may 
prescribe;  and  it  furthermore  requires  the  several  counties  of  the 
state  to  make  provisions  under  general  state  laws,  "for  those 
inhabitants  who  by  reason  of  age,  infirmity,  or  misfortune  may 
have  claims  upon  the  sympathies  and  aid  of  the  county."  The 
state  of  New  York  also  ifiaintains  special  institutions  for  feeble- 
minded children,  feeble-minded  women,  idiots,  epileptics,  in- 
ebriate women,  crippled  and  deformed  children,  persons  afflicted 
with  incipient  pulmonary  tuberculosis,  decrepit  and  mentally 
enfeebled  persons,  juvenile  delinquents,  imfortimate  women, 
unprotected  girls,  and  Indians.^ 

Within  recent  years  there  has  been  a  tendency  toward  the 
reorganization  and  consolidation  of  state  charitable  institutions  and 
the  introduction  of  more  scientific  and  humane  treatment  of  the 
unfortunate.  Every  advanced  commonwealth  now  has  a  state 
board  of  charities.  In  New  York  this  board  consists  of  twelve 
members  appointed  by  the  governor  and  the  senate  —  one  from 
each  judicial  district  and  three  from  the  city  of  New  York.  This 
board  of  charities  is  required  to  visit,  inspect,  and  maintain  a' 
general  supervision  over  all  institutions,  state  and  municipal,  which 
are  of  a  charitable,  correctional,  or  reformatory  character;  it  is 
furthermore  required  to  aid  in  securing  a  just,  humane,  and  eco- 
nomic administration  of  the  institutions  subject  to  its  control,  to 
advise  the  officers,  to  aid  in  securing  the  provision  of  suitable  ac- 
commodations for  inmates,  to  control  the  organization  and  incor- 
poration of  new  charitable  and  reformatory  institutions  —  in  short, 
to  assist  in  maintaining  high  standards  of  efficient  and  humane 
service  in  the  charities  of  the  state. 

^  The  care  of  the  poor,  that  is,  persons  unable  to  maintain  themselves,  is 
generally  vested  under  state  laws  in  county  or  town  authorities.  The 
local  body  usually  provides  poorliouses  and  institutions  of  various  kinds 
under  the  care  of  the  superintendent  or  overseer  of  the  poor. 


746  American  Government  and  Politics 


Education 

Education  in  the  United  States  is  regarded  as  a  purely  state 
and  local  function.  Although  Congress  has  aided  the  develop- 
ment of  education,  especially  in  the  western  states,  by  the  reserva- 
tion of  school  lands  and  by  grants  from  the  sale  of  public  lands, 
every  attempt  to  set  up  anything  like  a  national  control  over 
education  has  been  steadily  resisted.  Even  the  project  of  es- 
tablishing a  national  university,  which  has  been  before  Congress 
since  the  early  years  of  the  repubUc,  is  probably  no  nearer  reah- 
zation  than  it  was  fifty  years  ago.  It  is  true  there  is  a  bureau  of 
education  in  the  Department  of  the  Interior,  but  the  commis- 
sioner in  charge  of  that  bureau  has  no  administrative  control 
over  the  educational  systems  of  the  several  states.  His  functions 
are  limited  principally  to  a  study  of  educational  problems 
and  the  publication  of  useful  educational  data.  In  this 
respect,  therefore,  the  United  States  differs  from  most  countries 
of  Europe  where  the  educational  systems  are  largely  dominated 
by  the  central  governments.  It  is  largely  due  to  this  state  auton- 
omy that  the  educational  systems  of  the  several  commonwealths, 
while  founded  upon  certain  American  ideals,  possess  a  high  degree 
of  effective  adaptability  to  local  needs. 

The  principle  that  "  knowledge  and  learning  generally  diffused 
throughout  the  community  are  essential  to  the  preservation  of  a 
free  government  and  of  the  rights  and  liberties  of  the  people,"  is 
embodied  in  many  of  our  state  constitutions;  but  several  of  them 
go  farther  and  provide  in  more  or  less  detail  for  the  establishment 
of  state  educational  systems.  The  constitution  of  New  York, 
for  instance,  requires  the  legislature  to  provide  "for  the  main- 
tenance and  support  of  a  system  of  free  common  schools,  wherein 
all  children  of  this  state  may  be  educated,"  —  a  provision  to  be 
found  in  some  form  in  the  constitutions  drafted  since  the  middle 
of  the  nineteenth  century.  Some  other  states  go  even  farther. 
For  example,  the  fundamental  law  of  Oklahoma  orders  the  legis- 
lature to  provide  for  the  compulsory  attendance  at  some  public 
or  other  school,  unless  other  means  of  education  is  afforded,  of 
all  the  children  in  the  state  between  eight  and  sixteen  years  of  age, 
who  are  sound  in  mind  and  body;  and  fixes  the  minimum  educa- 
tion for  such  children  at  three  months  in  each  year.    Under  the 


Social  and  Economic  Legislation  747 

constitution  of  Nebraska,  the  legislature  must  arrange  for  free 
instruction,  in  the  common  schools,  of  all  persons  between  the 
ages  of  five  and  twenty-one  years.  The  constitutions  of  several 
western  states  also  provide  for  a  state  university,  and  in  a  number 
of  cases,  institutions  of  higher  learning  have  been  established  by 
the  legislatures  under  general  constitutional  provisions  —  such 
as  that  found  in  Indiana,  making  it  the  duty  of  the  legislature 
"to  encourage  by  all  suitable  means,  moral,  intellectual,  scientific, 
and  agricultural  improvement." 

Some  constitutions,  however,  go  into  more  detail  with  regard  to 
education.  Wyoming,  for  example,  makes  provision  for  a  com- 
plete and  uniform  system  of  public  instruction,  "embracing  free 
elementary  schools  of  every  needed  kind  and  grade,  a  university 
with  such  technical  and  professional  departments  as  the  pubhc 
good  may  require  and  the  means  of  the  state  allow,  and  such  other 
institutions  as  may  be  necessary." 

A  number  of  state  constitutions  set  aside  special  funds  for 
educational  purposes.  For  instance,  Nebraska  declares  to  be 
perpetual  funds  for  common  school  purposes  the  amount  granted 
by  Congress  on  the  sales  of  lands  in  the  state,  all  moneys  arising 
from  the  sale  or  lease  of  sections  sixteen  and  thirty-six  in  each 
township  of  the  state  (or  lands  selected  in  lieu  thereof),  the  pro- 
ceeds of  lands  and  property  accruing  to  the  state  through  escheat 
and  forfeiture,  fines,  penalties,  and  Hcense  moneys  arising  under 
the  general  laws  of  the  states  and  certain  other  specified  revenues. 

Generally  speaking,  the  constitution  of  a  commonwealth  will 
also  stipulate  that  neither  the  state  nor  any  subdivision  thereof 
may  allow  the  use  of  its  property,  credit,  or  public  money,  directly 
or  indirectly,  in  aiding  and  maintaining,  other  than  for  examina- 
tion and  inspection,  any  school  or  institution  of  learning  wholly 
or  in  part  under  the  control  or  direction  of  any  religious  denomi- 
nation or  in  which  any  denominational  tenet  or  doctrine  is 
taught. 

The  supervision  of  the  educational  interests  of  each  state  is 
usually  invested  in  a  commissioner  or  superintendent  of  educa- 
tion, sometimes  acting  in  conjunction  with  a  board  and  some- 
times alone.  Generally  speaking,  the  state  superintendent  or 
commissioner  of  education  is  rather  narrowly  controlled  by  state 
laws  and  has  very  little  power  to  prescribe  the  subjects  taught  in 
the  schools  or  methods  of  teaching.     It  is  usually  the  duty  of  the 


748  American  Government  and  Politics 

state  superintendent  to  visit  the  various  parts  of  the  state;  to 
cooperate  with  county  superintendents  and  other  local  educa- 
tional authorities  in  developing  uniformly  higher  standards;  to 
collect  statistics  and  other  data;  to  devise  plans  for  the  improve- 
ment of  the  educational  system;  and  to  make  reports  to  the 
governor  and  legislature  upon  which  new  legislation  may  be  based. 
Quite  commonly,  state  normal  schools  and  institutions  for  the 
training  of  teachers  are  placed  under  the  supervision  of  the  state 
superintendent,  but  the  state  universities  stand  on  a  more 
independent  basis. 

The  powers  of  central  boards  of  education  vary  greatly  from 
state  to  state.  In  some  instances  they  are  merely  charged  with 
the  guardianship  of  the  school  funds  and  school  lands;  in  others, 
their  functions  are  merely  to  advise  the  state  superintendent  or 
commissioner  on  educational  policies;  in  others,  they  are  given 
a  large  authority  over  the  whole  system  of  the  state,  including 
the  power  to  make  rules  and  regulations  affecting  the  curriculum, 
books,  methods  of  instruction,  examinations  and  appointment 
of  teachers. 

The  education  department  of  New  York  may  be  taken  as 
only  fairly  typical.  It  consists  of  a  board  of  regents  (who  con- 
stitute the  governing  body  of  that  famous  institution  "the 
University  of  the  State  of  New  York  ")  and  a  commissioner  of 
education.  The  board  of  regents,  which,  in  a  way,  takes  the 
place  of  the  board  of  education  in  other  states,  consists  of  twelve 
members  elected  by  the  legislature,  and  it  has  the  power  to  grant 
charters  to  educational  institutions,  govern  the  issuance  of  de- 
grees, investigate  all  institutions  of  learning,  establish  teaching 
courses,  supervise  entrance  requirements  to  professions,  direct 
the  educational  policies  (including  those  relating  to  secondary 
and  elementary  schools),  confer  honorary  degrees  and  suitable 
certificates,  diplomas,  and  degrees  on  persons  who  meet  satis- 
factory examination  requirements,  direct  state  Hbraries,  museums, 
and  similar  institutions;  and,  in  the  language  of  the  educational 
law,  "  cooperate  with  other  agencies  in  bringing  within  the  reach 
of  the  people  at  large  increased  educational  opportunities  and 
facilities,  by  stimulating  interest,  recommending  methods, 
designating  suitable  teachers  and  lecturers,  lending  necessary 
books  and  apparatus,  conducting  examinations  and  granting 
credentials,  and  otherwise  aiding  such  work."    The  board  of 


Social  and  Economic  Legislation  749 

regents  by  establishing  a  state  system  of  examinations  has  done 
a  great  deal  to  standardize  and  raise  the  level  of  educational 
work  throughout  the  commonwealth. 

The  commissioner  of  education,  who  is  the  chief  executive 
officer  of  the  state  educational  department,  is  appointed  by  the 
board  of  regents.  He  supervises  generally  the  enforcement  of  the 
education  law  and  the  poHcies  adopted  by  the  board  of  regents. 
He  enjoys  high  judicial  powers  because  he  has  the  final  and 
conclusive  right  of  determining  appeals  carried  to  him  from  the 
action  of  local  school  officers  and  boards ;  he  supervises  and  directs 
the  school  commissioners  in  all  parts  of  the  state;  he  has  special 
control  over  state  normal  schools  and  training  schools  for  teachers. 
In  short,  he  is  the  general  advisory  and  supervisory  officer  of  the 
state  system  of  education. 

For  the  most  part  the  central  administration  of  each  state  limits 
its  activities  to  general  matters,  but  the  legislature  of  the  common- 
wealth enacts  the  laws  upon  which  the  whole  public  system  must 
rest;  and,  under  the  terms  of  the  constitution,  provides  the  way 
in  which  funds  for  educational  purposes  may  be  raised  and 
apportioned  among  the  various  locaUties.  The  state  also  looks 
after  the  establishment  and  maintenance  of  state  universities 
and  normal  schools.  In  the  East,  where  there  are  a  number 
of  colleges  and  universities  older  than  the  Republic  itself,  the 
state  makes  little  or  no  provision  for  higher  education  except 
for  the  training  of  teachers.  In  some  instances,  however,  private 
institutions,  such  as  Cornell,  Yale,  and  Harvard,  are  recognized 
by  the  state  and  aided,  at  least  in  the  development  of  certain 
departments.  In  the  East,  therefore,  college  and  university 
work  is  generally  regarded  as  a  pecuKar  field  for  private  institu- 
tions, and  it  is  held  that  the  people  should  not  be  taxed  to  furnish 
higher  education  to  the  relatively  few  who  can  take  advantage 
of  it.  On  the  other  hand,  in  the  West  the  state  university  is 
looked  upon  as  the  crowning  institution  of  a  great  democratic 
educational  system,  and  the  western  states  are  steadily  working 
toward  a  system  of  free  education  beginning  in  the  kindergarten 
and  running  through  the  graded  and  high  schools  and  the  colleges 
to  the  universities. 


750  American  Government  and  Politics 

The  central  government  of  the  state  also  controls  by  special 
and  general  acts  the  incorporation  of  colleges,  seminaries,  and 
institutions  of  higher  education.  It  is  from  the  state  that  in- 
stitutions of  learning  secure  the  power  to  grant  degrees/ 

The  actual  administration  of  education,  however,  is,  for  the 

1  Total  expenses  for  education  in  typical  states  in  1902: 

Alabama  (typical  of  the  South): 

State $1,310,122 

Counties 1,108,256 

Cities  with  a  population  of  over  25,000  in  1900 100,748 

8,000  to  25,000  in  1900 35>^90 

Other  minor  civil  divisions 70,300 

Total ■ $2,624,616 

Illinois: 

State $1,869,984 

Counties 251,858 

Cities  with  a  population  of  over  25,000 7,606,605 

8,000  to  25,000 1,480,995 

Other  minor  civil  divisions 6,750,000 

Total $17,959,442 

Massachusetts: 

State $1,037,170 

Counties 149,879 

Cities  with  a  population  of  over  25,000 8,327,964 

8,000  to  25,000 2,457,908 

Other  minor  civil  divisions 1,750,000 

Total $13,722,921 

Nevada  (smallest  expenditure) : 

State $171,946 

Counties 4,211 

Other  minor  civil  divisions 200,000 

Total $376,157 

New  York  (largest  expenditure) : 

State. ^ $  5,435,787 

Counties 22,329 

Cities  with  a  population  of  over  25,000 24,076,015 

8,000  to  25,000 1,914,262 

Other  minor  civil  divisions 9,000,000 

Total $40,448,393 

Wealth,  Debt,  and  Taxation  (Special  Reports  of  the  Census  Office,  1907), 
pp.  982-989. 


Social  and  Economic  Legislation  751 

most  part,  regarded  as  a  local  matter  and  is  vested  in  county, 
city,  township,  and  other  local  authorities.  Outside  of  New 
England  we  usually,  find  a  county  superintendent  or  a  county 
board  of  education,  or  both,  standing  in  somewhat  the  same 
relation  to  the  county  schools  in  which  the  state  superintendent 
or  board  does  to  the  whole  system  of  the  commonwealth.^ 

Provision  is  generally  made  by  law  for  the  division  of  the  county 
into  school  districts,  but  usually  township  lines  are  not  crossed 
in  the  formation  of  these  districts.  In  fact,  the  township  is 
often  the  lowest  administrative  division  of  the  state  educational 
system  and  the  administration  of  educational  matters  in  the 
township  or  town  is  left  to  the  t  ustee  or  to  some  special  authorities 
locally  elected.^  Sometimes,  however,  there  is  a  board  of  trustees, 
and  sometimes  a  single  ofiicer,  in  every  school  district.  The 
administration  of  education  in  cities  is,  as  we  have  seen,  vested 
in  a  board,  sometimes  appointed,  but  quite  generally  elected 
by  the  voters.^ 

Large  experiments  have  also  been  made  in  extending  the  ad- 
vantages of  education  beyond  the  schools  and  universities  to 
the  broad  masses  of  the  people  by  the  estabHshment  of  public 
libraries,  travelling  Ubraries,  and  extension  systems.  More 
than  two-thirds  of  the  states,  including  New  York,  Michigan, 
Wisconsin,  Indiana,  and  Minnesota,  have  endeavored  to  cariy 
education  beyond  the  limits  of  the  schoolroom  through  travelling 
libraries.  Indiana,  for  example,  has  provided  for  the  establish- 
ment of  such  Hbraries,  and  the  authorities  in  charge  have  pre- 
pared small  boxes  containing  books  on  special  subjects  and  also 
books  of  a  general  character.  These  Hbraries  are  circulated 
throughout  the  state  through  local  associations  at  a  nominal 
cost,  and  in  1907  the  pubhc  Hbrary  commission  of  that  state 
reported  that  there  were  then  in  circulation  nearly  two  hundred 
travelling  Hbraries  containing  about  six  thousand  books  and  that 
there  were  some  three  hundred  local  Hbrary  associations  scattered 
throughout  the  state. 

^  In  New  England  the  local  school  system  is  generally  in  the  hands  of 
school  committees  or  supervisors  elected  in  the  several  towns. 

2  Townships  are  frequently  divided  into  school  districts  with  a  special  au- 
thority in  each. 

^  Above,  p.  624. 


752  American  Government  and  Politics 

Legislation  Relative  to  Morals 

In  the  United  States,  notwithstanding  our  strong  individual- 
ism, the  state  interferes  with  what  is  commonly  regarded  as 
individual  liberty  perhaps  as  much  as  any  country  in  the 
world.  It  is  a  common  practice  to  prohibit  all  labor  on  Sunday 
except  works  of  necessity  and  charity  and  also  to  forbid  all 
public  sports,  exercises,  and  shows,  and  all  noises  disturbing  the 
public  peace  on  Sunday.  Gambling,  pool  selling,  lotteries,  and 
betting  on  races  are  generally  forbidden.  A  number  of  states 
have  attempted  to  limit  the  manufacture  and  sale  of  cigarettes 
—  for  example,  Indiana  has  made  it  unlawful. 

The  manufacture  and  sale  of  intoxicating  liquors  are  placed 
under  strict  supervision  and  in  a  number  of  cases  entirely 
prohibited.  About  half  a  century  ago,  a  wave  of  temperance 
swept  over  the  northern  states,  and  Maine,  New  Hampshire, 
Vermont,  Connecticut,  New  York,  Delaware,  Michigan,  Indiana, 
Iowa,  and  Rhode  Island  adopted  prohibition  by  legislative  act.  * 
When  the  wave  subsided,  prohibition  was  given  up  in  a  major- 
ity of  these  states  in  favor  of  the  system  of  high  license. 

The  opening  of  the  twentieth  century,  however,  saw  a  great 
revival  of  temperance  enthusiasm,  especially  in  the  West  and 
South;  and  during  the  last  decade  Georgia,  Alabama,  Oklahoma, 
Mississippi,  Tennessee,  North  Carolina,  and  North  Dakota 
have  adopted  state-wide  prohibition.^  During  the  same  period 
a  large  number  of  states,  including  Indiana,  Illinois,  Minnesota, 
and  Washington,  have  passed  strict  local  option  laws  allowing 
certain  local  divisions  ^  to  abolish  the  sale  of  liquor  by  popular 
vote  or  by  a  petition. 

Similar  laws  have  long  been  in  force  pretty  generally  through- 
out the  Union,  and  through  the  persistent  efforts  of  the  tem- 
perance forces,  state  after  state  has  been'going  "dry"  by  the 
gradual  process  afforded  by  local  option.  In  1909  it  was  esti- 
mated that  two-thirds  of  the  territory  and  almost  one-half  of 
the  people  of  the '  United  States  were  under  prohibition  laws. 
About  two- thirds  of  the  people  of  Indiana  in  1909  resided  in 

^  In  a  few  instances  the  prohibition  law  was  wholly  invalidated  by  the 
court. 

2 Maine  (1854)  and  Kansas  (1880)  were  already  "dry. " 

'  Sometimes  counties,  but  more  often  townships,  villages,  and  cities. 


I 


Social  and  Economic  Legislation  753 

prohibition  territory  ;  and  in  Vermont  at  least  216  towns  out  of 
240  were  ''dry."  We  are  in  fact  in  the  midst  of  a  nation-wide 
temperance  movement,  the  outcome  of  which  it  is  difficult  to 
predict ;  but  impartial  investigators  believe  that  it  has  more 
vitality  than  the  movement  of  fifty  years  ago  because  it  is 
being  adopted  in  small  communities  by  popular  vote  whereas 
earlier  the  attempt  was  made  to  impose  state-wide  prohibition 
by  legislative  enactment. 


3c 


BIBLIOGRAPHICAL  NOTE 

General  Works  on  American  Government 

E.  Baldwin,  The  American  Judiciary.    A  general  survey  of  the  subject 
intended  for  the  beginning  student  and  layman  in  law. 

James  Bryce,  The  American  Commonwealth.  2  vols.  1908.  Covers  the 
entire  field  of  American  government,  including  party  operations. 

J.  W.  Bl^gess,  Political  Science  and  Comparative  Constitutional  Law.  2 
vols.  1890.  Deals  with  American  constitutional  law  by  the  comparative 
method. 

J.  R.  Commons,  Proportional  Representation.     1907.     A  study  of  the  evils  of 
gerrymandering  and  district  tickets  ;  proposals  for  reform. 
M.  CooLEY,  A  Treatise  on  Constitutional  Limitations.     1890.    Discusses 
the  various  limitations  imposed  upon  legislative  power. 

A.  C.  CooLiDGE,  The  United  States  as  a  World  Power.     1908.    The  relations 
of  the  United  States  to  the  important  nations  of  the  world. 
P.  Cotton,  The  Constitutional  Decisions  of  John  Marshall.     2  vols.     1905. 
Contains  the  decisions  of  Marshall  dealing  with  constitutional  questions, 
with  a  brief  introductory  note  to  each  case. 

The  Federalist.  To  be  secured  in  many  editions.  A  collection  of  papers  on  the 
federal  Constitution,  by  Hamilton,  Madison,  and  Jay,  which  should 
be  in  every  student's  library. 

FiNLEY  AND  SANbsRSON,  The  American  Executive  and  Executive  Methods. 
A  study  of  the  offices  of  President  and  Governor. 

F.  J.  Good  NOW,  The  Principles  of  the  Administrative  Law  of  the  United  States. 
1905.  The  organization  of  the  executive  in  national,  state,  and  local 
government,  and  judicial  control  over  it. 

Benjamin  Harrison,  This  Country  of  Ours.  1901.  Gives  a  very  intimate 
and  interesting  description  of  the  hfe  and  work  of  the  President. 

A.  B.  Hart,  Practical  Essays  on  American  Government.  1894.  The  prin- 
cipal topics  dealt  with  are :  the  Speaker,  the  election  of  a  President, 
civil  service  reform,  river  and  harbor  bills,  and  the  pubUc  land  policy. 

F.  C.  Howe,  Privilege  and  Democracy  in  America.  Devotes  special  attention 
to  the  land  question  and  the  single  tax. 
A.  Jameson,  A  Treatise  on  Constitutional  Conventions.  1887.  A  full 
treatment  of  state  and  federal  constitutional  conventions,  from  a  legal 
standpoint. 
W.  Jenks,  Principles  of  Politics.  A  study  of  some  fundamental  matters  of 
government,  such  as  the  suffrage,  from  the  viewpoint  of  the  citizen. 

[.  H.  Latane,  America  as  a  World  Power.  Recent  history  of  the  United 
States.     (In  Hart's  American  Nation  Series.) 

Emil  McClain,  Constitutional  Law  in  the  United  States.     1907.  _  Deals  with 
.  the  powers  of  the  different  branches  of  government  and  individual  rights. 
P.  McGehee,  Due  Process  of  Law.     1906.    The  term  "due  process"  ex- 
plained in  the  light  of  judicial  decisions. 
S.  Reinsch,  Readings  on  American  Federal  Government.     1909.     A  collec- 
tion of  source  extracts  illustrating  the  workings  of  the  federal  government. 

755 


756  Bibliographical  Note 

P.  S.  Reinsch,  World  Politics.  An"analysis  of  the  forces  underlying  world 
relations  to-day. 

Albert  Shaw,  Political  Problems  of  American  Development.  1907.  Takes 
up  such  questions  as  immigration,  national  domain,  party  politics,  rail- 
ways and  trusts,  tariff,  im)ney,  and  foreign  policy. 

J.  Allen  Smith,  The  Spirit  of  American  Government.  1907.  A  suggestive 
study  of  the  fundamental  principles  of  American  government. 

F.  J.  Stimson,  Federal  and  State  Constitutions.  A  comparative  study  of 
American  constitutional  principles. 

Joseph  Story,  Commentaries  on  the  Constitution  of  the  United  States.  2  vols. 
Many  editions.  Valuable  for  federal  constitutional  law;  slight  refer- 
ence to  actual  practice. 

F.  N.  Thorpe,  The  Federal  and  State  Constitutions.  1909.  Contains  all  the 
charters  and  constitutions  of  each  state ;  arranged  chronologically  by 
states. 

C.  G.  Tiedeman,  The  Unwritten  Constitution  of  the  United  States.     1890. 

A  discussion  of  the  historical  development  of  our  constitutional  system, 
particularly  those  points  not  described  in  the  written  document. 

W.  W.  WiLLOUGHBY,  The  American  Constitutional  System.  1904.  A  valu- 
able survey  of  the  general  principles  of  American  constitutional  law. 
Professor  Willoughby  has  a  larger  work  in  preparation. 

WooDROW  Wilson,  Constitutional  Government  in  the  United  States.  1908. 
Devoted  largely  to  a  consideration  of  the  salient  features  of  the  national 
government. 

James  A.  Woodburn,  The  American  Republic  and  its  Government.  1903. 
Principally  a  description  of  the  national  government. 

Works  on  the  Federal  Government 

H.  V.  Ames,  State  Documents  on  Federal  Relations.  1906.  A  collection  of  j 
documents  illustrating  conflicts  between  the  federal  and  state  govern- 1 
ments.  J 

D.  R.  Dewey,  Financial  History  of  the  United  States.     1903.     A  clear  andf 

valuable  general  survey. 
J.  Hampton  Dougherty.     The  Electoral  System  of  the  United  States.     1906. 

A  history  of  the  electoral  college  and  a  study  of  its  defects,  with  suggested 

remedies.  ! 

J.  A.  Fairlie,  The  National  Administration  of  the  United  States  of  America.! 

1905.     A  detailed  description  of  the  executive  department. 
Max  Farrand,  The  Legislation  of  Congress  for  the  Government  of  the  Organized^ 

Territories  of  the  United  States,  1 789-1 895.     1896. 
C.  R.  Fish.     The  Civil  Service  and  the  Patronage.     1905.     A  history  of  tha 

patronage  system  and  civil  service  reform. 
M.  P.  Follett,  The  Speaker  of  the  House  of  Representatives.     1904,     A  his-' 

tory  of  the  speakership  and  a  full  description  of  the  elements  of  the 

Speaker's  power. 
C.  H.  Forbes-Lindsay,  The  Philippines  under  Spanish  and  American  Rules. 

1906. 
John  W.  Foster.     The  Practice  of  Diplomacy.    The  forms,  methods,  and 

functions  of  diplomatic  and  consular  representation. 
H.  B.  Fuller,  Speakers  of  the  House.     1909.     A  general  historical  sketch  of 

the  development  of  the  office  of  Speaker  of  the  House  of  Representatives. 
W.  H.  Glasson,  History  of  Military  Pension  Legislation  in  the  United  States. 

1900.     (Columbia  Studies.) 


Bibliographical  Note  757 

E.  C.  Griffith,  The  Rise  and  Development  of  the  Gerrymander.     1907.     A 

brief  history  of  the  gerrymander  to  about  1850. 
L.  H.  Haney,  a  Congressional  History  of  Railways.     1910.     University  ot 

Wisconsin  Studies. 
G.  H.  Haynes,  The  Election  of  Senators.     1906.     A  study  of  the  present 

system  and  of  the  arguments  for  and  against  popular  election. 
J.  W.  Jenks,  The  Trust  Problem.    A  study  of  the  economic  forces  making  for 

industrial  combinations. 
Clara  H.  Kerr,  United  States  Senate.     1895.     Deals  principally  with  the 

procedure  in  the  Senate  in  the  exercise  of  its  various  functions. 
L.  G.  McCoNACHiE,  Congressional  Committees.     1898.     A  detailed  study  of 

the  procedure  and  work  of  committees  in  Congress  and  their  influence  on 

legislation. 
E.  C.  Mason,  The  Veto  Power.     1891.    A  historical  discussion  of  the  presi- 
dential vetoes  ;   description  of  the  procedure  ;  and  the  political  signifi- 
cance of  the  power. 
B.  H.  Meyer,  Railway  Legislation  in  the  United  States.     1903.    Contains  a 

good  account  of  the  early  state  raihroad  commissions,  and  the  leading 

decisions  of  the  Interstate  Commerce  Commission. 
John  Bassett  Moore,  A   Digest  of  International  Law.     8  vols.     1906. 

A  monumental  collection  and  digest  of  materials  on  every  phase  of 

international  law. 

E.  P.  Prentice,  The  Federal  Power  over  Carriers  and  Corporations.     1907. 

A  historical  development  of  the  power  of  Congress  over  interstate  com- 
merce. 

J.  D.  Richardson,  A  Compilation  of  the  Messages  and  Papers  of  the  Presi- 
dents, 1 789-1897.  10  vols.  Contains  inaugural  addresses,  annual  and 
special  messages,  proclamations,  and  executive  orders  of  the  Presidents. 

L.  S.  Rowe,  The  United  States  and  Porto  Rico.     1904. 

D.  Y.  Thomas,  A  History  of  Military  Government  in  Newly  Acquired  Terri- 

tory of  the  United  States.     (Columbia  Studies.) 

F.  Van  Dyne,  A  Treatise  on  the  Law  of  Naturalization  in  the  United  States. 

Citizenship  of  the  United  States. 

W.  F.  WiLLOUGHBY,  Territories  atid  Dependencies  of  the  United  States.  1905. 
An  excellent  brief  survey. 

W.  W.  WiLLOUGHBY,  The  Supreme  Court  of  the  United  States.  1890.  A  his- 
tory of  the  Supreme  Court  and  its  relations  to  the  other  departments  of 
the  government. 

Woodrow  Wilson,  Congressional  Government.  A  suggestive  study  of  Con- 
gress at  work. 

State,  Municipal,  and  Local  Govern^nt 

S.  W.  Abbott,  The  Past  and  Present  Condition  of  Public  Hygiene  and  State 
Medicine  in  the  United  States.     1900. 

E.  E.  Agger,  The  Budget  in  the  American  Commonwealths.     1907.     (Colum- 

bia Studies.) 
W.  F.  Clark,  Elementary  Law.     1909.    A  very  useful  book  for  beginning 
students  of  law. 

F.  A.  Cleveland,  Chapters  on  Municipal  Administration  and  Accounting. 

1909.     Studies  in  technical  problems  of  municipal  government. 
J.  Q.  Dealey,  Our  State  Constitutions.     1907.     A  brief  but  valuable  survey  of 

the  principal  features  of  state  constitutions. 
Horace  E.  Deming,  The  Government  of  American  Cities.     1909.    Points  out 


7^8  Bibliographical  Note 

that  the  defects  of  our  city  governments  are  largely  due  to  their  complex- 
ity and  to  legislative  interference. 

E.  G.  Dexter,  A  History  of  Education  in  the  United  States.     1904. 

J.'  A.  Fairlie,  Municipal  Administration.  1901.  A  study  of  municipal 
functions  and  the  organization  of  the  administration  of  American  and 
European  cities.  .        .  ah-  c 

J.  A.  Fairlie,  Essays  on  Municipal  Admimstration.  A  collection  of 
papers  on  special  topics  relative  to  American  and  foreign  city 
government. 

J.  A.  Fairlie,  Local  Government  in  Counties,  Towns,  and  Villages.  1906. 
A  full  description  of  the  organization  of  local  government  and  its  rela- 
tion to  the  state  government. 

First  National  Conference  on  State  and  Local  Taxation.  1907.  Valuable 
papers  on  many  problems  of  taxation. 

F.  J.  GooDNOW,  City  Government  in  the  United  States.     1904.     Deals  with  the 

relation  between  the  city  and  the  state,  the  organization  of  city  govern- 
ment, and  municipal  functions. 

F.  J.  GooDNOW,  Municipal  Government.  1909.  A  comparative  study  of 
American  and  European  methods. 

A.  R.  Hatton,  Digest  of  City  Charters.  1906.  Prepared  vmder  the  direction 
of  the  Chicago  Charter  Convention.  Contains  the  frame  of  govern- 
ment of  the  principal  cities  of  the  United  States,  and  a  few  Canadian  and 
European  cities,  arranged  according  to  topics. 

F.  C.  Howe,  The  City  the  Hope  of  Democracy.  Municipal  ownership  and  the 
land  problem. 

Inheritance  Tax  Laws.  Government  Printing  Office,  1907.  Digest  of  the 
principal  features  of  the  laws  of  Great  Britain,  France,  and  Germany, 
together  with  an  outline  of  inheritance  taxation  in  the  United  States  and 
a  collection  of  judicial  decisions  relating  thereto. 

IviNS  and  Mason,  The  Control  of  Public  Utilities.  1908.  Though  in  form  an 
annotation  of  the  public  service  commissions  law  of  New  York,  this  is  a 
thorough  investigation  of  the  general  topic. 

Municipal  aiid  Private  Operation  of  Public  Utilities.  1907.  Report  of  the 
Commission  on  Public  Ownership  and  Operation  of  the  National  Civic 
Federation.  An  extensive  study  of  the  advantages  and  disadvantages 
of  municipal  ownership. 

E.  G.  Murphy,  Problems  of  the  Present  South.  An  important  study  of  the 
question  of  the  suffrage  in  the  South. 

E.  P.  Oberholtzer,  The  Referendum  in  America.     1900.     A  history  of  popu- 

lar legislation  in  the  United  States,  in  both  state  and  local  matters. 

F.  Parsons,  ^Ae  City  for  the  People.    A  study  of  municipal  utilities  from  the 

standpoint  of  municipal  ownership, 
J.  B.  Phillips,  Recent  State  Constitution  Making.    The  University  of  Colo- 
rado Studies.     1904.    Principally  an  analysis  of  constitutional  changes 

from  1895  to  1903. 
J-.  B.  Phillips,  Educational  Qualifications  of  Voters.    University  of  Colorado 

Studies.     1906.     A  summary  of  educational  qualifications  for  voters  in 

the  various  states  at  that  date. 
Proceedings  of  the  National  Conference  for  Good  City  Government.     Published, 

annually,  beginning  in  1894.     Invaluable  for  municipal  development  in 

the  United  States. 
Proceedings  of  the  National  Civil  Service  League.     Published  annually. 
P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods.     1907.    The 

greater  part  of  the  book  is  devoted  to  a  description  of  the  organization 


Bibliographical  Note  759 

and  workings  of  state  legislatures.    There  are,  however,  valuable  chap- 
ters on  Congress. 
E.  C.  RoBBiNS,  Selected  Articles  on  the  Commission  Plan  of  Municipal  Gov- 
ernment.    Minneapolis,   1909.     A  collection  of  papers  on  commission 
government. 

C.  M.  Robinson,  Improvement  of  Towns  and  Cities.     1901.    Suggestions  on 

practical  ways  of  making  public  improvements. 

L.  S.  RowE,  Problems  of  City  Government.  1908.  Principally  a  discussion  of 
municipal  functions. 

H.  R.  Seager,  a  Program  of  Social  Reform.  1910.  A  study  of  modem  labor 
problems,  employers'  liability,  workmen's  compensation,  unemploy- 
ment, and  old  age  pensions. 

Lincoln  Steffens,  The  Shame  of  the  Cities.  1904.  An  expose  of  political 
corruption  in  some  of  our  principal  cities.     Told  with  great  detail. 

Lincoln  Steffens,  The  Struggle  for  Self-government.  1906.  An  expose  of 
political  corruption  in  some  of  the  state  governments. 

L.  Veiller,  Housing  Reform.     1910.     A  study  of  practical  methods. 

D.  F.  Wilcox,  The  American  City:  A  Problem  in  Democracy.     1904.     A  dis- 

cussion of  some  of  the  newer  activities  undertaken  by  the  cities. 
Charles  Zueblin,  American  Municipal  Progress.     1902.     A  description  of 
what  our  city  governments  are  doing  in  the  way  of  parks,  libraries, 
schools,  recreation,  etc. 


Political  Parties  and  Party  Organization 

J.  B.  Bishop,  Our  Political  Drama:  Conventions,  Campaigns,  Candidates. 
1904.  Lively  descriptions  of  national  conventions  and  campaigns,  with 
illustrations  and  reproductions  of  cartoons. 

F.  W.  Dallinger,  Nominations  for  Elective  Office  in  the  United  States.  1897. 
After  a  brief  survey  of  the  historical  development  of  nominating  systems, 
gives  a  detailed  description  of  current  methods. 

Henry  J.  Ford,  The  Rise  and  Growth  of  American  Politics.  1898.  A  sug- 
gestive work  on  the  origin  of  parties  in  the  United  States,  and  their  place 
in  our  system  of  government. 

F.  J.  GooDNOW,  Politics  and  Administration.  1900.  Deals  with  the  influence 
of  party  politics  on  the  conduct  of  the  government. 

Jesse  Macy,  Party  Organization  and  Machinery  (The  American  State  Series). 
1904.     A  description  of  national  and  state  party  committees. 

C.  E.  Merriam,  Primary  Elections.  1908.  Historical  survey  and  sum- 
mary df  principles. 

E.  C.  Meyer,  Nominating  Systems:  Direct  Primaries  versus  Conventions  in  the 
United  States.  1902.  Gives  an  account  of  the  caucus  and  convention 
system,  and  the  movement  for  the  direct  primary. 

M.  Ostrogorski,  Democracy  and  the  Organization  of  Political  Parties.  1902. 
2  vols.  The  second  volume  is  devoted  to  the  history  of  party  organiza- 
tion in  the  United  States  and  a  description  of  existing  party  machinery 
and  methods. 

E.  Stanwood,  History  of  the  Presidency.  1898.  An  account  of  each  presi- 
dential campaign. 

J.  A.  WooDBURN,  Political  Parties  and  Party  Problems  in  the  United  States. 
Contains  a  full  description  of  party  machinery  and  the  conduct  of 
campaigns. 


INDEX 

Note.  —  For  additional  references  to  states  and  cities,  consult  the  several  func- 
tions of  government,  for  example,  finance,  judiciary,  etc. 


Acceptance  sp)eech,  p.  172. 

Accessory  to  crime,  p.  570. 

Administration,  national,  pp.  215  ff. ; 
state,  pp.  492  fif. ;  municipal,  pp.  593 
fif. ;   centralization  of,  p.  654. 

Advisory  initiative,  p.  464. 

Agriculture,  department  of,  pp.  222,  408. 

Alabama,  constitutions  of,  p.  97  ;  popu- 
lar election  of  Senators,  p.  242  ;  suf- 
frage, pp.  454  f. ;  amendment  process, 
p.  458  f. ;  salary  and  term  of  governor, 
p.  491  ;  pay  and  term  of  legislators, 
p.  527  ;  ballot,  p.  681 ;  primary  law, 
p.  694. 

Alaska,  p.  425. 

Alien  act,  p.  107. 

Aliens,  admitted  to  suffrage,  p.  454. 

Ambassadors,  appointment  of,  pp.  196, 
317  flf. ;  functions  of,  p.  319  ;  immuni- 
ties of,  p.  319. 

Amendment  clause,  of  federal  Constitu- 
tion, pp.  56,  60  ff. 

Amendment,  Thirteenth,  pp.  68  ff. ; 
Fourteenth,  pp.  69  ff.,  436  ff. ;  pro- 
posed Sixteenth,  p.  71. 

Amendment  process  in  state  constitu- 
tions, evolution  of,  pp.  96  ff. ;  charac- 
ter of,  pp.  458  ff. 

Amendments,  to  federal  Constitution, 
adoption  of,  pp.  63  ff.,  201  note. 

American  republics,  bureau  of,  p.  222. 

Annapolis,  convention  of  (1786),  p.  43. 

Anti-federaUsts,  pp.  106  ff. 

Anti-lobby  legislation,  pp.  543  f. 

Anti-masons,  p.  131. 

Anti-trust  Act  (1890),  p.  383. 

Appeals,  in  colonial  courts,  p.  13 ;  in 
civil  cases,  p.  566 ;  in  criminal  cases, 
P-  576. 

Appointment,  to  office,  pp.  89  ff . ;  federal, 
p.  216;  state,  pp.  494,  508,  sii ;  city, 
p.  5Q_2. 

Apportionment,  for  state  legislatures, 
p.  520. 


Appropriations,     federal,     pp.    365    ff. ; 

state,  pp.  508  ff. 
Arbitration,    international,   pp.  339  ff. ; 

labor  and  capital,  p.  741. 
Arizona,  p.  420. 
Arkansas,  popular  election  of  Senators, 

p.  242  ;   suffrage,  p.  455  ;   amendment 

process,  p.  458 ;    salary  and  term  of 

governor,   p.   491 ;    pay  and  term  of 

legislators,  p.  527  ;  ballot  law,  p.  680; 

primary  law,  p.  694. 
Army,  United  States,  pp.  342  ff. 
Arrest,  warrant  for,  p.  571. 
Articles    of    Confederation,    failure    of, 

pp.  28,  36  ff. 
Assessments,  state  and  local,  p.  714. 
Assessor,  county,  p.  647. 
Attainder,  bill  of,  p.  434. 
Attorney-general,  federal,  pp.  189,   198, 

204,  210,  219,  221,  300;  state,  pp.  483, 

501. 
Attorney,  prosecuting,  pp.  549,  572,  643. 
Auditor,  state,    pp.  483,   500 ;    county, 

p.  647. 
Australian  ballot,  pp.  675  ff. 

Ballot,  popular  control  through,  pp. 
469  ff. ;  Australian,  p.  675  ;  Massachu- 
setts, p.  677  ;  party  column,  p.  678. 

Banks,  national,  p.  377. 

Banking  associations,  p.  376. 

Banking  (state),  supervision  of,  p.  731. 

Bankruptcy,  p.  259. 

Baths,  municipal,  p.  630. 

Bicameral  legislature,  pp.  53  ff.,  505,  519. 

Bill  of  attainder,  p.  434. 

Bill  of  credit,  pp.  40,  375. 

Bill  of  rights,  federal,  p.  147  ff. ;  state, 
p.  447- 

Bills,  introduction  of,  into  Congress, 
p.  271  ;  drafting  of,  p.  497;  in  state 
legislature,  pp.  537,  542,  545. 

Board  of  estimate  and  apportionment 
in  Nfc../  York  City,  p.  595. 


761 


762 


Index 


Board  system  in  cities,  pp.  593  ff- 

Boards,  county,  p.  640. 

Boston,  council,  p.  s^S  .*  mayor,  p.  59 
budget,  pp.  592,  604 ;  civil  service,  p 
602  ;   (iarter  revision  of  1909,  p.  602 
street  paving,  p.  616 ;    education  ex 
penditure,  p.  624;    libraries,  p.  626 
parks,    p.    627 ;     percentage    owning 
homes,   p.   633;    "191S    movement," 
p.  634  note. 

Bribery  in  elections,  p.  671. 

Budget,  city,  preparation  of,  pp.  604  ff . ; 
state,  pp.  708  ff. 

Business  taxes,  p.  717. 

Cabinet,  appointment  of,  pp.  185,  190; 
character  of,  pp.  219  ff. ;  proposed 
state,  pp.  504  f. 

Calendar  Wednesday,  p.  290. 

California,  popular  election  of  Senators, 
p.  242  ;  prosecution  by  information  in, 
p.  439 ;  constitution  of,  p.  446 ; 
residence  qualification  for  voters,  p. 
454 ;  educational  test  for  voters,  p. 
455  ;  amending  process,  p.  459 ;  term 
and  salary  of  governor,  p.  491  ;  new 
state  ofBces  in,  p.  508  ;  pay  and  terms 
of  legislators,  p.  527  ;  legislative  refer- 
ence, p.  545  ;  code  in,  p.  556 ;  con- 
stitutional provisions  for  cities,  p.  583  ; 
initiative  and  referendum  for  cities, 
p.  597  ;  commission  government  in,  p. 
599;  ballot  in,  p.  681  ;  primary  law, 
694  ;    land  law,  p.  723. 

Campaign,  national,  pp.  174  ff. ;  contri- 
butions by  corporations,  p.  176  note; 
character  of  contributions,  p.  669 ; 
expenses  regulated,  p.  701. 

Candidates,  presidential,  tours  by,  p. 
178;  assessment  of,  p.  668.  See 
Convention  and  Primary. 

Capital  punishment,  pp.  575  f. 

Caucus,  legislative,  p.  128  ;  congressional 
nominating,  p.  1 29 ;  congressional, 
p.  268 ;  in  state  legislature,  p.  533. 

Centralization,  federal,  p.  386. 

Chairman.  See  Committee,  national ; 
state,  p.  657. 

Chancellor,  p.  4. 

Chancery  courts,  p.  548. 

Charities,  public,  p.  745. 

Charter-making  for  cities,  pp.  581  ff. 

Chicago,  elections  in,  p.  471  ;  percentage 
of  foreign-born  inhabitants,  p.  578; 
charter    revision,     p.    584;     council, 


p.  585  ;  mayor,  p.  591 ;  civil  service, 
p.  597;  children's  courts,  p.  612  ;  hous- 
ing, p.  615;  street  railway  mileage, 
p.  619;  transportation,  p.  619;  edu- 
cation expenditures,  p.  624 ;  public 
lecture  system,  p.  626 ;  libraries,  p. 
627  ;  parks  and  playgrounds,  pp.  628 
ff. ;  percentage  owning  homes,  p.  633  ; 
voters'  league,  p.  704. 

Child  labor,  p.  734. 

Chinese  exclusion,  pp.  120,  122,  387. 

Chisholm  v.  Georgia,  pp.  65,  76. 

Circuit  court.     See  Judiciary,  federal. 

Citizens,  rights  of,  in  war  time,  p.  352. 

Citizens  Union  of  New  York,  pp.  546,  704. 

Citizenship,  p.  160. 

City  government,  elective  offices  in,  p. 
481  ;  difficulties  of,  p.  578 ;  and  the 
state  legislature,  p.  579  ;  home  rule,  p. 
579  ;  special  legislation  for,  pp.  580  ff. ; 
classification  of  cities,  p.  582  ;  charter- 
making  and  amendment,  pp.  682  ff. ; 
council,  pp.  584  ff. ;  taxation,  p.  589 ; 
franchises,  p.  590  ;  mayor,  pp.  591  ff. ; 
finances,  pp.  591  f.,  603  ff. ;  adminis- 
tration, p.  593  ;  departments  of,  p.  595  ; 
civil  service,  p.  596  ;  suffrage,  p.  597  ; 
initiative  and  referendum,  p.  597  ;  re- 
call, p.  597  ;  party  nominations,  p.  598  ; 
commission  government,  pp.  598  ff. ; 
budget,  pp.  604  ff. ;  police,  pp.  607  ff. ; 
courts, pp. 6r iff. ;  health, tenement, and 
fire  departments,  pp.  614  ff. ;  streets, 
pp.  616  ff. ;  transportation,  p.  619 ; 
waterworks,  p.  620 ;  education  in,  p. 
624 ;  libraries,  p.  627  ;  parks,  pp.  627 
ff. ;  baths,  p.  630;  death-rate,  p.  631  ; 
land  problem,  p.  631  ;  home-owning,  p. 
633  ;   municipal  ownership,  pp.  634  ff. 

Civil  service,  federal,  reform  of,  pp.  120, 
222  ff. ;  act,  p.  223  ;  commission,  pp. 
222  ff. ;  examinations,  pp.  225  ff. ; 
classified,  p.  224  ;  extension  of,  p.  224  ; 
exceptions  in,  p.  226  ;  appointment  to, 
p.  226  ;  removal  from,  p.  227  ;  politics 
in,  p.  228;    pensions,  p.  230. 

Civil  service,  state,  pp.  51 1  ff. ;  municipal, 
p.  596. 

Claims,  federal  court  of,  p.  300  note. 

Classes,  colonial,  p.  16.     See  Labor. 

Clerk,  county,  pp.  549,  648. 

Cleveland,  council,  p.  585 ;  mayor,  p. 
591 ;  garbage  disposal,  p.  618;  trans- 
portation, p.  619 ;  playgi^Sunds  and 
parks,  p.  628;    franchises,  p.  635. 


Index 


7^3 


Coal  supply,  pp.  40Q  f. 

Codification  of  the  law,  pp.  555  IT. 

Coins,  p.  376. 

Colorado,  sufifrage,  pp.  453  f. ;  amend- 
ment process,  p.  458  ;  salary  and  term 
of  governor,  p.  4Q1  ;  pay  and  term  of 
legislators,  p.  527 ;  initiative  and 
referendum  for  cities,  p.  507  ;  commis- 
sion government  in,  p.  599  ;  ballot  law, 
p.  681  ;  state  support  of  campaigns, 
P-  703. 

Commander-in-chief,  power  of  President 
as,  pp.  194  ff. 

Commerce,  under  Articles  of  Confedera- 
^         tion,  pp.  37  ff. ;  interstate  and  foreign, 
PP-  55.   258,  379 ;    state  interference, 
p.  432  ;  state  regulation,  pp.  724  ff. 

Commerce    and    labor,   department    of, 
pp.  222,  392. 
[     Commission  government,  municipal,  pp. 
484,  598  ff. 

(  oinmissions,  state,  pp.  501  ff. ;  criticism 
of,  p.  502  ;  prop>osals  for  reform,  p. 
504 ;  public  service,  pp.  508,  730  f. 

Committee  (party),  national,  pp.  166, 
172;  state,  pp.  657,  690  ff. ;  county, 
p.  691. 

Committee  of  the  whole  (Congress),  p. 
274  and  note. 

C(»mmittees,  correspondence,  pp.  22  ff. 

Conmiittees  in  Congress,  pp.  274,  276  ff., 
20 1  ff. ;  in  state  legislatures,  pp.  534  ff. 

Common  law,  p.  553. 

Comptroller,  state,  p.  500. 

Concurrent  resolutions,  pp.  201  note  2, 
2QO  note. 

Confederation,  Articles  of,  pp.  26  ff. 

Confederation,  New  England,  p.  20. 

(  onference  committee,  p.   291. 

Congress,  first  Continental,  pp.  23  ff. ; 
-^(•cond  Continental,  pp.  25  ff. 

Congress,  United  States,  salary  of 
members,  p.  244 ;  freedom  of  arrest, 
p.  245  ;  freedom  of  speech,  p.  245  ; 
internal  organization,  p.  246  ;  quorum, 
p.  246 ;  sessions,  p.  248 ;  powers, 
pp.  253  ff. ;  debate  in,  p.  254;  party 
organization  in,  pp.  267  ff. ;  business 
in,  p.  269;  rules,  pp.  272  ff. ;  Speaker 
of  House,  pp.  27?  ff. ;  committees  of, 
pp.  276  ff. ;  relation  to  President,  pp. 
-'05  ff. 

Coimecticut,  colonial  government  in, 
pp.  3-20  passim;  part  in  the  Revolu- 
tion, pp.  22-33  passim;    suffrage  and 


qualifications  for  office  in,  pp.  80  ff. ; 
salary  and  term  of  governor,  p.  491  ; 
representation  in,  p.  521  ;  pay  and 
term  of  legislators,  p. .xa^-' ballot  law, 
p.   68 1.  ^--- 

Conservation  commission,  p.  406. 

Conservation  of  natural  resources,  pp. 
405  ff. 

Constitution,  federal,  demand'  for,  pp. 
42  ff. ;  call  of  convention  to  frame,  p. 
44 ;  the  framing  of,  pp.  44  ff.,  49  iT. ; 
compromises  of,  p.  52 ;  contrasted 
with  Articles  of  Confederation,  pp. 
53  ff. ;  ratification,  pp.  5O  ff. ;  develop- 
ment of,  pp.  Oo  ff . ;  amendments  to,  pp. 
63  ff. ;  principles  of,  pp.  145  ff.  See 
Amendments. 

Constitutions,  state,  formation  of,  pp. 
28  ff. ;  size  of,  p.  79 ;  tendencies  in 
development  of,  pp.  78  ff. ;  principles 
of,  pp.  445  ff. 

Consuls,  appointment  of,  p.  196 ;  func- 
tions of,  pp.  322  ff. 

Contract,  obligation  of,  pp.  40,  76,  434 
ff. 

Contract  labor,  exclusion  of,  p.  387. 

Contracts,  law  of,  p.  560. 

Contributory  negligence,  pp.  560,  738. 

Convention  of  1787,  pp.  43  ff. 

Conventions  (party),  early,  p.  127;  rise 
of  national,  p.  130  ff. ;  working  of 
national,  pp.  166  ff. ;  state,  pp.  128, 
489,  659,  699. 

Conventions,  state  constitutional,  pp. 
4s8f. 

Copyrights,  pp.  259  f. 

Coroner,   p.   646. 

Corporations,  federal  regulation,  pp. 
380  ff. ;  state  regulation,  pp.  440,  451, 
724  ff. ;  law  of,  p.  563  ;  contributions 
to  parties,  p.  702  ;   taxation  of,  p.  716. 

Corrupt  practices  acts,  p.  701. 

Council,  city,  pp.  584  ff. ;  form  of,  p. 
585  :  size  of,  p.  585  ;  elections  for, 
p.  586  ;  decline  in,  p.  587  ;  powers  of, 
pp.  588  ff. ;  and  administration,  p. 
590;   relation  to  mayor,  p.  591. 

Council,  colonial,  pp.  7  f. ;  governor's, 
p.  88. 

County,  government,  pp.  639  ff. ;  court, 
pp.  13,  548,  642  ;  elections  in,  p.  484  ; 
party  organization,  p.  661. 

Courts.     See  Judiciary. 

Crimes,  power  of  federal  government 
over,  p.  262. 


764 


Index 


Criminal   law,   pp.   568  fif. ;    procedure, 

pp.  ISO,  S7I  ff- 
Cuba,  relation  to  United  States,  p.  427- 
Cumulative  voting  in  Illinois,  p.  523. 
Customs  court,  p.  300  note  i. 

Debate,  limits  on  in  House  of  Representa- 
tives, p.  274 ;  in  the  Senate,  p.  275  ; 
in  state  legislature,  p.  538. 

Debt,  national,  p.  373  note ;  state,  p.  707. 

Debt  limit,  state,  p.  450. 

Delaware,  colonial  government  in,  pp. 
3-20  passim;  formation  of  state  gov- 
ernment, p.  31 ;  suffrage  and  qualifi- 
cations for  office,  pp.  80  ff . ;  salary  and 
term  of  governor,  p.  491  ;  pay  and 
term  of  legislators,  p.  527  ;  ballot  law, 
p.  681. 

Democracy,  jk  colonial  limes,  pp.  16  ff. ; 
in  the  national  «;onyention  of  1787, 
pp.  46  ff. ;  rise  of  ^political,  pp.  79  ff. ; 
rise  of  western,  pp.  108  ff. 

Democratic  party,  pp.  i<?6,- 123,  134,  391. 

Departments,  heads  of  federal,  pp.  210  ff. ; 
and  Congress,  pp.  210,  212,  213  note, 
217,  215  ff. ;   state,  499  ff. 

Des  Moines,  commission  government, 
pp.  600  ff. 

Dilatory  motions,  p.  2*7  2. 

Dingley  bill,  p.  391.   - 

Direct  nomination,  for  Representatives, 
p.  238 ;  for  Senators,  pp.  242  ff.,  478, 
489,  693  ff.  _ 

Disputed  election,  the,  p.  182  note. 

District  of  Columbia,  courts  of,  p.  300 
note  I ;   government  of,  p.  426. 

District  court.     See  Judiciary,  federal. 

Divorce,  p.  562. 

Domain,  public,  pp.  401  ff. 

Domestic  relations,  p.  561. 

Due  process  of  law,  pp.  147,  437  ff. 

Education,  in  cities,  p.  624 ;  state  and 
local,  p.  746  ff. 

Educational  tests  for  voting,  p.  455. 

Eight-hour  day,  p.  733. 

Elections,  theory  of  popular,  p.  470  ;  num- 
ber of,  pp.  471  ff. ;  separation  of  state 
and  local,  p.  484 ;  regulation  of,  pp. 
672  ff. ;  primary,  p.  685  ff. ;  money  in, 
p.  701. 

Electors,  presidential,  pp.  179  ff. 

Employer's  liability,  pp.  736  ff. 

Enrollment,  party,  p.  687. 

Equity,  origin  and  character  of,  pp.  553  f. 


Executive,  see  President  and  Governor. 
Executive  agreements,  p.  197. 
Ex  post  facto,  p.  434. 
Extradition,  p.  159. 

Factory  legislation,  p.  735. 

False  imprisonment,  p.  559. 

Farmers'  alliance,  p.  122. 

Farms,  abandoned,  p.  407. 

Federalist,  the,  pp.  51,  104  ff. 

Federal  law,  supremacy  of,  p.  156. 

Fellow-servant   doctrine,    pp.    560,    738. 

Felonies,  p.  569. 

Finance,  federal,  pp.  257,  210,  355 ; 
taxing  power,  pp.  358  ff. ;  direct  tax, 
p.  359  ;  indirect  tax,  p.  360  ;  revenues, 
pp.  360,  369  ;  revenue  bills,  pp.  361  ff. ; 
appropriations,  pp.  365  ff. ;  collection 
of  revenues,  pp.  373  ff. ;  money,  pp. 
374  ff- 

Finance,  municipal,  pp.  589,  591,  592, 
595,  603  ff. 

Finance,  state,  limitations  on  legislatures, 
pp.  706  ff. ;  state  debts,  p.  707  ;  uni- 
formity in  taxation,  p.  707  ;  legislative 
methods,  p. 708 ;  appropriations,  p.  710  ; 
supervision  of  expenditures,  p.  712; 
accounting,  p.  713 ;  kinds  of  taxes, 
p.  714. 

Fire  department,  p.  615. 

Florida,  popular  election  of  Senators, 
p.  252  ;  judges,  p.  452  ;  salary  and 
term  of  governor,  p.  491  ;  legislative 
apportionment,  p.  520;  pay  and  term 
of  legislators,  p.  527 ;  ballot  law, 
p.  680  ;  primary  law,  p.  694. 

Foreign  affairs,  pp.  315  ff. 

Forestry  service,  p.  412. 

Forests,  pp.  411  ff. 

Fourteenth  amendment,  pp.  436  ff. 

Franchises,  corporate,  p.  135  ;  referen- 
dum on,  p.  465  ;  municipal,  pp.  590, 
619,  634. 

Fraud  orders,  pp.  218,  399. 

Free  delivery  service,  p.  397. 

Full  faith  and  credit  clause,  p.  158. 

Galveston,  commission  government  in, 
p.  598. 

General  property  tax,  p.  714. 

General  staff,  p.  348. 

Georgia,  colonial  government  in,  pp.  3-20 
passim;  formation  of  state  govern- 
ment, p.  31  ;  suffrage  and  qualification 
for  office,  pp.  80  ff. ;    constitutions  of,     ' 


Index 


765 


p.  98  ;  popular  election  of  senators,  p. 
242 ;  salary  and  term  of  governor, 
p.  491  ;  pay  and  term  of  legislators, 
p.  527  ;  ballot  in,  p.  679  ;  primary  law, 
p.  694- 

Gerrymander,  origin  of  term,  p.  235  note  ; 
in  congressional  districts,  p.  235  ; 
state,  pp.  520,  523. 

Gold  basis,  p.  376. 

Governor,  colonial,  pp.  3  S.;  early,  pp. 
87  ff. ;  state,  nomination  and  election, 
p.  489;  qualifications,  terms,  salary, 
pp.  490  ff.;  and  militia,  p.  492  ;  power 
of,  over  state  administration,  pp. 
492  ff  ;  appointing  power,  p.  494  ;  and 
the  budget,  p.  495  ;  and  martial  law, 
p.  495  ;  and  special  sessions,  p.  496 ; 
growth  of  power,  p.  497  ;  veto  power, 
p.  498 ;  pardoning  power,  p.  498 ; 
proposals  to  increase  power,  pp. 
504  ff. ;    removal  power,   p.    510. 

Governors'  conference,  p.  406. 

Greenback  party,  p.  122. 

Greenbacks,  p.  376. 

Guan,  p.  425. 

Habeas  corpus,  suspension  by  President, 

p.  194 ;  writ  of,  p.  302  ;  in  war  time, 

p.  353  ;  in  states,  p.  495. 
Hague  conferences,  pp.  340  f. 
Hawaii,  pp.  420  ff. 
Health,  municipal  department,  p.  614 ; 

public,  p.  742. 
Home  rule  (municipal),  pp.  579  ff. 
Homes  in  cities,  pp.  631,  633. 
Homestead  act,  p.  402. 
House  of  Representatives,  organization  of, 

pp.   231  ff. ;     party    organization    in, 

pp.    262   ff. ;    log-roUirjg  in,   p.    269 ; 

rules  of,  p.    272 ;   debate   in,   p.  274  ; 

committees  of,  pp.   276  ff. ;    Speaker 

of,  p.  280  ;  committee  on  rules,  p.  283  ; 

order  of  business,  pp.  284  ff. ;  minority 

in,  p.  289. 

Idaho,  popular  election  of  Senators,  p. 
242  ;  suffrage,  p.  453  ;  initiative  and 
referendum,  p.  463  ;  salary  and  term  of 
governor,  p.  491  ;  pay  and  term  of 
legislators,  p.  527  ;  initiative  and  refer- 
endum for  city  government,  p.  597  ; 
commission  government,  p.  599  ; 
ballot  law,  p.  682  ; '  primary  law,  p. 
694 ;   preferential  voting,  p.  696. 

Illinois,  suffrage,  pp.  85,  453  ;  amending 


system,  pp.  458  f. ;  public  opinion  law, 
p.  464 ;  salary  and  term  of  governor, 
p.  491;  civil  service  law,  p.  512; 
cumulative  voting  in,  p.  522  ;  pay  and 
terms  of  legislators,  p.  527  ;  legislative 
operations  in,  p.  539 ;  legislative 
reference,  p.  545  ;  restrictions  in  favor 
of  cities,  p.  584  ;  ballot  in,  pp.  681,  682  ; 
primary  law,  pp.  690,  694  note ; 
railroad  rates,  p.  727. 

Immigration,  pp.  387  ff. 

Impeachment,  federal  process,  p.  264 ; 
state  process,  p.  509. 

Imports,  tax  on,  p.  430. 

Inauguration,  presidential,  p.  185. 

Income  tax,  amendment,  p.  71 ;  federal, 
pp.  122,  360  and  note  i  ;  state,  p.  716. 

Incorporation,   federal,  p.  386. 

Indeterminate  sentence,  p.  575. 

Indiana,  residence  requirement  for  voting, 
p.  454 ;  amendment  process,  p.  459 ; 
local  referendum,  p.  465  ;  eligibility  of 
governor,  p.  490 ;  salary  and  term  of 
governor,  p.  491  ;  civil  service,  p.  512  ; 
pay  and  terms  of  legislators,  p.  527  ; 
ballot  law,  pp.  678  ff. ;  primary  law, 
p.  694  uniform  accounting,  p.  713; 
railroad  rate  law,  p.  727 ;  travelling 
libraries,  p.  749;  local  option,  p.  752. 

Indians,  p.  393  note. 

Individualism,  p.  722. 

Inferior  officers,  pp.  189,  190. 

Inheritance,  law  of,  p.  562. 

Inheritance  tax,  federal,  pp.  352,  360 ; 
state,  p.  715. 

Initiative  and  referendum,  state,  pp. 
460  ff. ;  municipal,  p.  597. 

Injunctions,  pp.  124,  304  ff.,  449. 

Instrumentalities,  federal,  tax  on,  p.  431. 

Insular  cases,  p.  419. 

Insurance,  regulation  of,  p.  732. 

Interior,  department  of,  p.  222. 

International  law,  pp.  337  ff. 

Interstate  Commerce.  See  Commerce, 
federal. 

Interstate  Commerce  Commission,  pp. 
222,    292,  380  ff. 

Iowa,  negro  suffrage,  p.  86 ;  popular 
election  of  Senators,  p.  242  ;  prohibi- 
tion law,  p.  433  ;  amendment  process, 
pp.  458  f. ;  salary  and  term  of  governor, 
p.  491  ;  pay  and  term  of  legislators, 
p.  527 ;  legislative  reference,  p.  545 
note ;  initiative  and  referendum  for 
cities,  p.  597  ;  commission  government 


766 


Index 


in,   pp.   SQQ  ff- ;    ballot  in,   p.   68i ; 
primary  law,  pp.  686,  691,  695. 
Irrigation,  p.  408. 

Japan,  p.  33i- 

Japanese  laborers,  exclusion  of,  p.  387- 

Judidary,  federal,  origin  of,  pp.  54  &■', 
,  expansion  of  the  Constitution  by,  pp. 
75  ff. ;  supremacy  of,  p.  164 ;  organi- 
zation and  functions  of,  pp.  294  ff. ; 
power  over  statutes,  p.  307  ;  power  of 
Congress  over,  p.  263 ;  control  over 
state  governments,  p.  429. 

Judiciary,  state,  pp.  547  ff. ;  election  of, 
pp.  550  ff. 

Jury,  pp.  89,  448,  549,  S6^,  572^, 

Justice,  department  of,  pp.  221,  300. 

Justices  of  the  peace,  pp.  121,  548. 

Kansas,  direct  nomination  of  Senators, 
p.  242 ;  suffrage,  p.  453 ;  amending 
process,  p.  459 ;  salary  and  term  of 
governor,  p.  491 ;  pay  and  term  of 
legislators,  p.  527  ;  initiative  and  refer- 
endum for  cities,  p.  597  ;  commission 
government  in,  p.  599 ;  ballot  law, 
p.  681  ;  primary  law,  p.  694 ;  prohibi- 
tion in,  p.  752. 

Kentucky,  popular  election  of  Senators, 
p.  242  ;  bill  of  rights,  p.  449  ;  suffrage, 
p.  453  ;  amendment  process,  pp.  458  f. ; 
salary  and  term  of  governor,  p.  491  ; 
pay  and  terms  of  legislators,  p.  527  ; 
ballot  law,  p.  681 ;  primary  law,  p.  694. 

Labor,  bureau  of  (federal),  p.  393  ;  rep- 
resentation in  state  legislatures,  p. 
525 ;  legislation  (state),  pp.  440,  732 
ff.     See  Socialism. 

Labor  Reformers,  p.  1 20. 

Labor  unions,  combinations  in  restraint 
of  trade,  p.  384. 

Laissez  faire,  policy  of,  pp.  722  ff. 

Lands,  public,  pp.  1 20,  401  ff . ;  disposi- 
tion of,  p.  403  ;  office,  p.  404 ;  state 
policy,  p.  723. 

Land  values,  pp.  631  f. 

Larceny,  p.  569. 

Law,  due  process  of,  pp.  437  ff. 

Law,  international,  pp.  337  ff. 

Law,  martial,  p.  345. 

Law  (private),  pp.  553  ff. ;  common,  pp. 
553  ff. ;  codification  of,  pp.  555  ff. ; 
civil,  pp.  557  ff. ;  of  real  property,  p. 
557;    of    personal   property,  p.  558; 


torts,  p.  559;  contracts,  p.  560;  do- 
mestic relations,  p.  561  ;  inheritance, 
p.  562  ;  corporations,  p.  563  ;  procedure 
(civil),  p.  653  ;  criminal,  pp.  568  ff. ; 
felonies,  p.  569  ;  misdemeanors  p.  570 ; 
procedure  (criminal),  p.  571. 

Legislation  (state),  criticism  of,  pp.  540 ff.; 
amount  of,  p.  541 ;  causes  for  bad 
quality,  p.  541 ;  technical  defects,  p. 
542 ;  drafring,  p.  543 ;  lobbymg,  p. 
543;    special,  p.  530.  j 

Legislature,  colonial,  pp.  7  ff. ;  decline  of, 
p.  86  ;  appointing  power,  pp.  92,  494  ; 
state,  criticism  of,  pp.  516  ff. ;  decUne 
in  power,  p.  517  ;  official  name,  p.  518  ; 
size  of,  p.  519  ;  the  two  houses,  p.  519  ; 
apportionment  of  representation  ;  p  520; 
gerrymandering,  p.  521  ;  cumulative 
voting  for  members,  p.  522  ;  terms  of 
members,  pp.  524,  527 ;  quahty  of 
membership,  p.  525  ;  salary  of  mem- 
bers, p.  527 ;  sessions  of,  p.  528; 
powers  of,  pp.  529  ff. ;  relation  to 
governor,  pp.  496  ff. ;  special  legisla- 
tion, pp.  530  ff.  ;  procedure  in,  pp. 
532  ff. ;  Speaker  in,  p.  533  ;  commit- 
tees in,  p.  534 ;  introduction  of  bill, 
p.  537  ;  limitation  of  debate  in,  p.  538  ; 
actual  operations  of,  pp.  538  ff. ;  faults 
of,  pp.  540  ff. ;  output,  p.  541 ;  bill 
drafting,  pp.  542  ff. ;  lobby  in,  p.  543  ; 
legislative  reference,  p.  544 ;  special 
committees,  p.  545  ;  and  the  public, 
p.  546;   removal  power,  p.  510. 

Libel,  law  of,  pp.  448,  570. 

Liberal  construction,  p.  255. 

Liberty,  legal  definition  of,  p.  438. 

Libraries,  city,  p.  627  ;  travelling,  p.  751. 

Library  hall  association,  p.  705. 

Lieutenant-governor,  p.  499. 

Liquor  tax,  p.  717. 

Lobbjring,  pp.  543  ff. 

Local  government,  colonial,  p.  15; 
modern,  pp.  481,  638  ff. 

Local  option,  p.  752. 

Log-roUing,  pp.  269  ff. 

Louisiana,  constitutions  of,  p.  98;  pop- 
ular election  of  Senators,  p.  242  ;  bill 
of  rights,  p.  449  ;  residence  require- 
ment for  voters,  p.  454  ;  educational 
test,  p.  455  note ;  suffrage,  p.  456 ; 
amendment  process,  p.  458 ;  salary 
and  term  of  gbvernor,  p.  491  ;  pay 
and  term  of  legislators,  p.  527  ;  parish 
in,  639  note. 


»> 


Index 


767 


McKinley  bill,  p.  391. 

Mail  matter,  definition  of,  p.  395. 

Maine,  judges,  p.  452  ;  suffrage,  p.  45s  ; 
initiative  and  referendum,  p.  463 ; 
salary  and  term  of  governor,  p.  491  ; 
pay  and  term  of  legislators,  p.  527  ; 
ballot  law,  p.  681  ;  prohibition  in, 
P-  752. 

Majority,  rule,  p.  46 ;  right  of,  limited, 
p.  449- 

Mandamus,  p.  303. 

Manslaughter,  p.  569. 

Manufactures,  bureau  of,  p.  393. 

Marbury  v.  Madison,  pp.  76,  308. 

Marque  and  reprisal,  p.  257. 

Maryland,  colonial  government  in,  pp. 
3-20  passim  ;  formation  of  state  consti- 
tution, p.  32  ;  suffrage  and  qualifica- 
tions for  office,  pp  8off. ;  constitutions 
of,  p.  98  ;  popular  election  of  Senators, 
p.  242  ;  term  and  salary  of  governor, 
p.  491  ;  pay  and  term  of  legislators,  p. 
527  ;  ballot  in,  p.  680 ;  primary  law, 
p.  694. 

Marriage,  law  of,  p.  561. 

Marshals,  federal,  p.  300. 

Martial  law,  pp.  345,  495. 

Massachusetts,  colonial  government  in, 
pp.  3-20  passim;  part  in  the  Revolu- 
tion, pp.  22-23  passim;  formation  of 
state  constitution,  p.  29 ;  Shay's 
rebelUon,  p.  40 ;  suffrage  and  quaUfi- 
cations  for  office,  pp.  80  ff. ;  governor 
of,  p.  87  ;  elective  offices  in,  p.  90 ; 
constitution  of,  p.  97  note  i  ;  elective 
offices  in,  p.  90  ;  judiciary,  p.  452  note  ; 
educational  test,  p.  455  note ;  amend- 
ing process,  pp.  458  f ;  pubhc  opinion 
bill,  p.  466 ;  salary  and  term  of 
governor,  p.  491  ;  civil  service  law, 
p.  512  ;  legislative  apportionment,  p. 
520  ;  pay  and  term  of  legislators  ;  p.  527 ; 
sessions  of  legislature,  p.  528;  com- 
mittee system  in  legislature,  p.  535  ; 
judges,  p.  452 ;  suffrage,  p.  597 ; 
commission  government  in,  p.  599  note  ; 
ballot,  .pp.  677  ff. ;  state  committee, 
p.  691  ;  primary  law,  debt,  p.  707  ; 
income  tax,  p.  716 ;  labor  legislation, 
PP-  733  f  • ;  arbitration  board,  p.  740  ; 
public  health  commission,  p.  742. 

Mayor,  pp.  591  ff. ;  relation  to  council, 
p.  591  ;  veto,  p.  591  ;  powers  of, 
pp.  483,  592 ;  growth  of  power,  p. 
593- 


Message,  governor's,  p.  496  ;  President's, 
pp.  197,  199. 

Michigan,  suffrage  in,  pp.  85,  453,  454 ; 
popular  election  of  Senators,  p.  242  ; 
amending  process,  p.  458  f .  ;  salary  and 
term  of  governor,  p.  491  ;  gerry- 
mander in,  p.  523  ;  pay  and  terms  of 
legislators,  p.  527  ;  cities  law,  p.  583  ; 
local  government,  p.  641  ;  ballot  law, 
p.  681  ;  primary  law,  p.  694 ;  railroad 
rate  law,  p.  727. 

Military  officers,  appointment  of,  p.  194. 

MiUtia,  pp.  19s,  343,  495- 

Mineral  lands,  p.  404  ;  resources,  p.  409. 

Ministers,  pp.  317  ff. 

Minnesota,  admission  of,  p.  445  ;  suffrage 
in,  p.  453  ;  amending  process,  pp.  459  f.; 
term  and  salary  of  governor,  p.  491  ; 
pay  and  terms  of  legislators,  p.  527  ; 
initiative  and  referendum  for  cities, 
p.  597  ;  ballot  in,  p.  680  ;  primary  law, 
p.  694 ;  constitutional  provision  for 
cities,  p.  583  ;  railway  rates,  p.  727 ; 
eight-hour  day,  p.  733. 

Mints,  federal,  p.  376. 

Mississippi,  popular  election  of  Senators, 
p.  242  ;  suffrage,  pp.  454  ff. ;  amend- 
ment process,  p.  458  ;  salary  and  term 
of  governor,  p.  491 ;  pay  and  term 
of  legislators,  pp.  527  f . ;  ballot  law, 
p.  680 ;    primary  law,  p.  694. 

Missouri,  popular  election  of  Senators, 
p.  242  ;  amendment  process,  p.  458 ; 
initiative  and  referendum,  p.  463 ; 
salary  and  term  of  governor,  p.  491  ; 
pay  and  term  of  legislators,  p.  527  ; 
legislative  control  of  cities,  p.  599 ; 
ballot  law,  p.  679  ;  primary  law,  p.  694. 

Money.     See  Finance,  federal. 

MonopoUes,  forbidden,  pp.  448,  723. 

Monroe  doctrine,  pp.  ^2>3  ff- 

Montana,  suffrage,  p.  453 ;  initiative 
and  referendum,  p.  463  ;  salary  and 
term  of  governor,  p.  491  ;  state  ad- 
ministration, p.  507  ;  pay  and  term  of 
legislators,  p.  527  ;  initiative  and  refer- 
endum for  cities,  p.  597  ;  ballot  law, 
p.  681. 

Morning  hour,  p.  286. 

Municipal.     See  City. 

Municipal  ownership,  pp.  634  ff. 

National  resources,  pp.  401  ff. 
NationaHsm,  p.  26. 
Naturalization,  p.  161. 


768 


Index 


Naval  academy,  p.  349. 

Navy,  pp.  346  S. ;  department  of,  348. 

Nebraska,  popular  election  of  Senators, 
p.  242 ;  suffrage,  pp.  453,  455  J  resi- 
dence requirement  for  voters,  p.  454 ; 
amendment  process,  pp.  458  f. ;  local 
initiative  and  referendum,  p.  465 ; 
salary  and  term  of  governor,  p.  491  ; 
impeachment  process,  p.  509  ;  removal 
process,  p.  510;  pay  and  terms  of 
legislators,  p.  527  ;  legislative  reference, 
p.  545 ;  initiative  and  referendum  for 
cities,  p.  597;  ballot  law,  p.  581; 
primary  law,  p.  694  ;  state  debt,  707  ; 
railroad  rate  law,  p.  727 ;  control  of 
corporations,  p.  726  ;  labor  law,  p.  734  ; 
education,  p.  747. 

Negro  suffrage,  pp.  84  ff.,  426,  455. 

Nevada,  popular  election  of  Senators,  p. 
242  ;  term  and  salary  of  governor,  p. 
491 ;  pay  and  term  of  legislators,  p. 
527  ;  ballot  law,  p.  680. 

New  Hampshire,  colonial  government, 
pp.  3-20  passim;  formation  of  state 
government,  pp.  28,  30;  suffrage,  pp. 
80  ff. ;  salary  and  term  of  governor, 
p.  491  ;  pay  and  term  of  legislators, 
p.  527  ;    ballot  law,  p.  681. 

New  Jersey,  colonial  government  in, 
pp:  3-20  passim;  part  in  the  Revolu- 
tion, pp.  23-33  passim;  formation  of 
state  government,  p.  31 ;  suffrage  and 
qualifications  for  office,  pp.  80  ff.  ; 
amending  process,  p.  458  f. ;  term  and 
salary  of  governor,  p.  491  ;  pay  and 
term  of  legislators,  p.  527  ;  ballot  law, 
p.  679  ;  primary  law,  p.  694. 

Newlands  act,  p.  408. 

New  Mexico,  p.  420. 

New  Orleans,  council,  p.  585  ;  education 
expenditure,  p.  624 ;  percentage  own- 
ing homes,  p.  633. 

New  York  City,  pp.  578-637  passim. 

New  York  (state),  colonial  government 
in,  pp.  3-20  passim;  part  in  Revolu- 
tion, pp.  22-33  passim;  formation  of 
state  government,  p.  31 ;  suffrage  and 
qualifications  for  office,  pp.  80  ff. ; 
governor  in,  p.  88 ;  elective  offices  in, 
pp.  89  ff. ;  suffrage,  p.  453 ;  amend- 
ment system,  p.  459  ;  salary  and  term 
of  governor,  p.  491 ;  power  of  governor, 
pp.  495  ff. ;  special  session,  p.  497  ; 
state  administration,  p.  501 ;  civil 
service,  pp.  511  ff. ;  legislature  of,  pp. 


518-545  passim;  anti-lobby  law,  p. 
543 ;  party  organization,  pp.  657  ff.  ; 
ballot,  p.  681 ;  primary  law,  pp.  686  ff. ; 
taxation  in,  pp.  715  ff. ;  control  of 
corporations,  pp.  725  ff. ;  labor  legis- 
lation, pp.  733  ff. ;  public  health,  p. 
743  ;   education,  p.  748. 

Nominations,  early  methods,  pp.  126  ff.  ; 
direct,  pp.  658  ff.  See  respective 
offices.  President,  Senator,  etc. 

Non-partisanship,   pp.  703  ff. 

North  Carolina,  colonial  government  in, 
pp.  3-20  passim;  suffrage  and  qualifi- 
cations for  office,  pp.  80  ff. ;  salary  and 
term  of  governor,  p.  491 ;  pay  and 
term  of  legislators,  p.  527  ;  ballot  law, 
p.  681. 

North  Dakota,  popular  election  of  Sena- 
tors, p.  242  ;  suffrage,  p.  453  ;  salary 
and  term  of  governor,  p.  491  ;  pay  and 
term  of  legislators,  p.  527  ;  initiative 
and  referendum  for  cities,  p.  597 ; 
commission  government,  p.  599 ;  bal- 
lot law,  p.  681  ;  primary  law,  p.  694. 

Notification  speech,  p.  172. 

Officers,  army  and  navy,  appointment  of, 
p.  350  ;  elective,  pp.  89,  470  ;  federal, 
pp.  189  ff. ;   state,  pp.  499  ff. 

Ohio,  suffrage  in,  p.  85  ;  elective  offices  in, 
p.  93 ;  popular  election  of  Senators, 
p.  242  ;  admission  of,  p.  444  ;  residence 
qualification  for  voters,  p.  454  ;  amend- 
ment process,  pp.  458  ff. ;  salary  and 
term  of  governor,  p.  491  ;  character 
of  legislature,  p.  526 ;  pay  and  term 
of  legislators,  p.  527  ;  ballot  in,  p.  681  ; 
primary  law,  p.  694 ;  accounting  law, 
PP-  655,  713  ;  debt  limit,  p.  707  ;  uni- 
formity in  taxation,  p.  707. 

Oklahoma,  popular  election  of  Senators, 
p.  242  ;  bill  of  rights,  pp.  484  ff. ;  suf- 
frage, p.  453  ;  initiative  and  referen- 
dum, pp.  460  ff. ;  term  and  salary  of 
governor,  p.  491  ;  pay  and  term  of  legis- 
lators, p.  527  ;  constitutional  provision 
for  cities,  p.  583  ;  initiative  and  referen- 
dum for  cities,  p.  597  ;  commission  gov- 
ernment in,  p.  599  ;  ballot  in,  p.  680  ; 
primary  law,  p.  694 ;  law  relative  to 
corporations  and  labor,  pp.  727  ff. 

Order  of  business  in  House  of  Representa- 
tives, pp.  284  ff. 

Oregon,  popular  election  of  Senators,  p. 
243  ;   suffrage,  pp.  453,  455  ;  initiative 


Index 


769 


and  referendum,  pp.  460  ff . ;  salary  and 
term  of  governor,  p.  491  ;  state  admin- 
istration, p.  504 ;  removal  and  recall, 
pp.  510  f. ;  pay  and  terms  of  legislators, 
p.  527  ;  legislative  reference,  p.  545  ; 
limitations  in  behalf  of  cities,  p.  583  ; 
initiative  and  referendum  for  cities,  p. 
597  ;  ballot  law,  p.  680  ;  primary  law, 
pp.  686,  694,  697. 
Overcrowding,  in  cities,  p.  631. 

Panama,  pp.  425  f. 

Parcels  post,,  p.  397.  <- 

Pardon,  President's  power  of,  p.  198 ; 
governor's,  p.  498. 

Parks,  municipal,  pp.  627  flf. 

Parliamentary  government,  pp.  211  flf. 

Parties,  political,  relation  to  government, 
PP-  73.  99  ff-,  206  ;  origin  of,  pp.  103  ff. ; 
national  organization,  'pp.  166  ff. ; 
state  organization,  pp.  657  ff. ;  abuses 
and  perversions,  pp.  133,  139,  146,  477, 
668 ;  regulation  of,  pp.  672  ff.  See 
President,  Congress,  etc. 

Patents,  pp.  259  f. 

Patronage,  federal,  pp.  190  ff. ;    p.  207. 

Pennsylvania,  colonial  government  in, 
pp.  3-20  passim;  part  in  the  Revolu- 
tion, pp.  23-33  passim;  formation  of 
state  government,  pp.  31,  32  ;  suffrage 
and  qualifications  for  office,  pp.  80  ff.  ; 
governor  in,  p.  87  ;  suffrage,  p.  455  ; 
amendment  process,  pp.  458  f. ;  salary 
and  term  of  governor,  p.  491 ;  board 
of  pardons,  p,  498 ;  pay  and  terms  of 
legislators,  p.  527  ;  special  and  local 
legislation,  p.  581  ;  ballot,  p.  681  ; 
primary  law,  p.  695 ;  uniformity  in 
taxation,  p.  707. 

Pensions,  military,  p.  354. 

Petition,  nomination  by,  p.  598 ;  right 
of,  p.  149. 

Philadelphia,  position,  under  state  con- 
stitution, p.  581  ;  council,  p.  585 ; 
mayor's  veto  power,  p.  591  ;  civil  ser- 
vice, p.  597  ;  children's  courts,  p.  612  ; 
education,  pp.  624  ff, ;  percentage 
owning  homes,  p.  633  ;  gas  works 
scandal,  p.  636. 

Philippine  Islands,  pp.  423  ff. 

Platform,  national,  preparation  of,  p. 
170;   state,  pp.  690,  700. 

Piatt  amendment,  p.  427. 

Political  theory,  p.  17. 

Politics.     See  Party. 

3D 


Pohtics,  world,  pp.  330  ff. 

Police,  state,  p.  607  and  note  i ;  power,  pp. 
432,  440  ;  city,  pp.  607  ff. ;  corruption, 
p.  671. 

Popular  election  of  Senators,  pp.  242  ff. 

Populists,  p.  122. 

Portland,  Oregon,  referendum  in,  pp. 
473  f-_ 

Porto  Rico,  government  of,  pp.  422  f. 

Postage  rates,  pp.  395  f. 

Postal  savings  banks,  pp.  123,  398. 

Postmaster-General,   p.   399. 

Post-office  service,  pp.  394  ff. ;  receipts 
and  expenditures,  p.  395  ;  department, 
pp.  218,  222,  399. 

Powers,  separation  of,  pp.  152  ff. 

President,  origin  of  office,  p.  53  ;  nomi- 
nation and  election  of,  pp.  170  ff. ; 
powers  of,  pp.  187  ff. ;  director  of  the 
administration,  p.  187 ;  powers  of 
appointment  and  removal,  p.  189  ;  war 
powers,  pp.  194,  344 ;  and  foreign 
affairs,  p.  196 ;  and  Congress,  pp. 
194,  208,  212;  message,  p.  199;  veto, 
p.  201 ;  salary,  p.  205  ;  as  party  leader, 
p.  206  ;  pardon,  p.  198  ;  foreign  affairs, 
p.  315- 

Presidency,  succession  to,  p.  184  note. 

Press,  freedom  of,  p.  148. 

Primary  legislation,  pp.  143  ff.,  685  ff. ; 
for  cities,  pp.  598,  601  ;  complexity  of, 
p.  472  ;  direct,  arguments  on,  pp.  693 
ff.     See  Nominations. 

Primogeniture,  p.  723. 

Private  rights,  under  federal  Constitution, 
pp.  146  ff. 

Privileges  and  immunities  of  citizens,  pp. 
157  f-.  436  ff. 

Probate  courts,  p.  548. 

Procedure,  civil,  pp.  563  ff. ;  criminal, 
P-  571- 

Procedure,  in  Congress,  pp.  267  ff. ;  in 
state  legislatures,  pp.  536  ff. 

Prohibition  laws,  pp.  433,  752. 

Prohibitionists,  pp.  119  ff. 

Property,  the  basis  of  government,  pp. 
46  ff. ;  private,  p.  151 ;  protection  of, 
p.  164 ;   law  of,  pp.  557  ff. 

Proprietary  colonies,  p.  6. 

Prosecution  of  criminals,  p.  644. 

Puritans,  p.  18. 

Qualifications,  on  suffrage,  pp.  79  ff.,  453 

ff. ;  for  officers,  pp.  81  ft". 
Quorum  in  Congress,  pp.  273,  275. 


770 


Index 


Railroads,  federal  regulation  of,  pp.  380 
ff. ;  state  regulation,  pp.  407,  44°.  727  S. 

Rebates,  p.  381. 

Recall,  general,  p.  511 J  in  cities,  pp.  597, 
601. 

Reclamation  work,  p.  408. 

Reconstruction  in  the  South,  p.  117. 

Recorder,  county,  p.  648. 

Recreation,  in  cities,  p.  628. 

Reference  bureaus,  p.  544. 

Referendum.    See  Initiative. 

Registration  of  voters,  p.  673. 

Registry  mail  service,  p.  395. 

Religion,  freedom  of,  p.  148. 

Removal,  power  of,  in  colonial  times, 
p.  4 ;  President's  j)ower,  p.  193 ;  in 
state  governments,  pp.  508  ff. 

Rendition,  interstate,  p.  159. 

Representatives,  House  of,  gerrymander, 
p.  236;  term  of  members,  p.  237; 
elections  to,  p.  238 ;  contested  elections, 
p.  238  ;  quorum  in,  247  ;  at  work,  pp. 
267  ff.    See  Congress. 

Republicans  (Jeffersonian),  p.  106. 

Republican  party,  origin  of,  pp.  114  ff. ,' 
first  national  convention,  p.  115; 
first  national  campaign,  p.  115;  first 
state  ticket,  p.  114  ;  campaign  of  i860, 
p.  116;  reconstruction  of,  pp.  116  f . ; 
platform  of  1908,  p.  123  ;  tariff,  p.  391. 

Residence  requirement  for  voting,  p.  454. 

Responsibility,  official,  pp.  90  ff. 

Revenue.     See  Finance. 

Revision  of  laws,  p.  545. 

Revolution,  the  American,  pp.  21  ff. 

Rhode  Island,  colonial  government  in, 
pp.  3-20  passim;  veto  power  in,  p.  6 
note ;  part  in  Revolution,  pp.  23-33 
passim;  formation  of  state  govern- 
ment, p.  31  ;  salary  and  term  of  gov- 
ernor, p.  491  ;  pay  and  term  of  legis- 
lators, p.  527  ;  ballot  in,  p.  681. 

"Riders,"  to  bills,  p.  202. 

River  and  harbor  improvements,  pp. 
415  f. 

Robbery,  p.  569. 

Rules  of  House  of  Representatives,  pp. 
272  ff. ;  Senate,  275  ;  committee  on, 
pp.  283-287. 

Rural  free  delivery,  p.  397. 

St.  Louis,  charter,  p.  583  ;  council,  p. 
585;  children's  court,  p.  612;  edu- 
cation expenditure,  p.  624. 

Salary.     See  the  several  oflBces. 


Saloon  in  politics,  p.  671. 

Samoa,  p.  426  note  2. 

San  Francisco,  charter,  p.  583 ;  counal 
p.  58s ;  mayor,  p.  591  ;  civil  service, 
p.  597 ;  budget,  p.  604 ;  percentage 
owning  homes,  p.  633. 

Santo  Domingo  affair,  p.  197. 

Second-class  mail,  p.  396. 

Secretaries,  federal,  pp.  215  ff. ;  salaries 
of,  p.  221  note;  commonwealth,  p. 
499.  See  the  several  federal  functions, 
Comnfttce,  Post-office,  War,  Foreign 
affaiP6»»^etc. 

Sedition  Act,  p.  107. 

Selectmen,  town,  p.  650. 

Senate,  United  States,  patronage,  pp.  189 
ff. ;  representation  in,  pp.  239  f . ;  quali- 
fications of  Senators,  p.  240  ;  election  of 
Senators,  pp.  120,  125,  241  ff. ;  dead- 
locks, p.  241  ;  term,  p.  244  ;  compared 
with  House  pp.  249  ff. ;  and  appropria- 
tions, pp.  251,  362. 

Senate,  state,  p.  519. 

Senatorial  courtesy,  p.  191. 

Separation  of  powers,  criticism  of,  p.  155  ; 
defence  of,  p.  155. 

Sessions,  special,  of  Congress,  p.  249  ; 
state  legislature,  p.  528. 

Sheriff,  p.  645. 

Sherman  anti-trust  act,  p.  384. 

Silver  certificates,  p.  376. 

Silver,  free  coinage  of,  p.  122  ;  purchase 
of,  p.  376. 

Single  tax,  p.  632. 

Slavery,  abolition  of,  pp.  67  ff. 

Socialism,  p.  733. 

SociaUst  labor  party,  p.  1 20. 

Socialist  party,  p.  121. 

Soil,  conservation  of,  pp.  407  ff. 

South  Carohna,  colonial  government  in, 
pp.  3-20  passim;  formation  of  state 
government,  p.  30 ;  suffrage  and 
quahfications  for  office,  pp.  80  ff. ; 
popular  election  of  Senators,  p.  242  ; 
salary  and  term  of  governor,  p.  491  ; 
pay  and  term  of  legislators,  p.  527  ; 
ballot  law,  p.  679  ;  primary  law,  p.  694. 

South  Dakota,  popular  election  of  Sena- 
tors, p.  694  ;  suffrage  in,  p.  453  ;  initia- 
tive and  referendum,  pp.  463,  469  ; 
salary  and  term  of  governor,  p.  491 ; 
term  and  pay  of  legislators,  p.  527  ; 
initiative  and  referendum  for  cities,  p. 
597  ;  commission  government,  p.  599  ; 
ballot  law,  p.  681  ;  primary  law,  p.  694. 


Index 


IT^ 


Speaker,  of  House  of  Representatives, 
pp.  73  f.,  269,  280  flf. ;  in  state  legisla- 
ture,  p.   533- 

Special  legislation  for  cities,  pp.  581  ff. 

Special  sessions,  of  Congress,  p.  249 ; 
of  state  legislature,  p.  496. 

Speech,  freedom  of,  p.  148. 

Spoils  system,  pp.  139  f.,  668. 

Standards,  bureau  of,  p.  259. 

State,   federal  department  of,   pp.    221, 

31S  ff- 

States,  origins  of,  pp.  2  flf. ;  establishment 
of,  pp.  28  ff.     See  Constitution,  State. 

Streets,  municipal,  pp.  616  ff. 

Strict  construction,  p.   255. 

Suffrage,  colonial,  pp.  8  ff . ;  negro,  pp.  70, 
426 ;  early  laws  on,  p.  79 ;  federal 
limitations,  p.  163  ;  present  conditions 
of,  p.  453  ;   woman's,  pp.  453  f.,  464. 

Supreme  Court.     See  Judiciary. 

Tammany  Hall,  origin  and  development 
of,  pp.  135  ff. ;  organization,  pp.  661  ff. 

Tariff,  protective,  pp.  116,  117,  118,  123  ; 
bills,  pp.  361,  390. 

Taxation.     See  Finance. 

Temperance  legislation,  p.  752. 

Tenement-house  inspection,  p.  615  ;  law, 
p.  744. 

Tennessee,  popular  election  of  Senators, 
p.  242  ;  suffrage,  p.  455  ;  amendment 
process,  p.  458 ;  term  and  salary  of 
governor,  p.  491  ;  term  and  pay  ofc 
legislators,  p.  527  ;  initiative  and  refer- 
endum for  cities,  p.  597  ;  commission 
government  in,  p.  599;  ballot  law,  p. 
680  ;  primary  law,  p.  694. 

Tenufe  of  Office  Act  (1820),  p.  154; 
(1867),  p.  193. 

Territories,  government  of,  pp.  263,  417 
ff. ;  powers  of  Congress  in,  pp.  418  f. ; 
federal  policy  in,  pp.  419  f . 

Texas,  popular  election  of  Senators,  p. 
242  ;  admission  to  the  Union,  p.  443  ; 
amendment  process,  p.  458  ;  term  and 
salary  of  governor,  p.  491  ;  pay  and 
term  of  legislators,  p.  527  ;  initiative 
and  referendum  for  cities,  597 ;  com- 
mission government  in  p.  599 ;  ballot 
in,  p.  681  ;   primary  law,  p.  694  note. 

Third  term  doctrine,  p.  184. 

Thirteenth  Amendment,  p.  208. 

Timber  lands,  pp.  403  f. 

Tonnage  tax,  p.  430. 

Torts,  p.  558. 


Town  government,  pp.  649  ff. 

Town  meeting,  pp.  650  ff. 

Township  government,  pp.  649  ff. 

Treason,  p.  149. 

Treasurer,    state,    pp.    483,    493,    500 ; 

county,  p.  646. 
Treasury,  federal  department  of,  pp.  188, 

210,  221,  373,  377  f. 
Treaties,  power  over,  pp.  196  ff.,  325  ff. ; 

negotiation  of,  pp.  327  ff. 
Trustee,  township,  p.  652. 
Trusts,  federal  regulation  of,  pp.  383  ff. ; 

state  regulation  of,  pp.  724  ff. 
Tutuila,  p.  425. 
Two-thirds  rule,  p.  172. 

Unanimous  consent,  in  the  House  of 
Representatives,  p.  281 ;  calendar  of, 
p.  290. 

Union,  Albany  plan  of,  p.  20. 

Unit  rule,  p.  171. 

Utah,  suffrage,  p.  453 ;  amendment 
process,  pp.  458  f . ;  initiative  and  refer- 
endum, p.  463  ;  salary  and  term  of  gov- 
ernor, p.  491  ;  pay  and  term  of  legis- 
lators, p.  527  ;  ballot  law,  pp.  678,  681. 

Vermont,  bill  of  rights,  p.  450 ;  amend- 
ment process,  p.  458  ;  term  and  salary 
of  governor,  p.  491  ;  gerrymander  in, 
p.  521 ;  character  of  legislature,  p.  525  ; 
pay  and  term  of  legislators,  p.  527  ; 
judiciary,  p.  551  ;  ballot  law,  p.  681. 

Veto,  colonial,  pp.  5  ;  President's,  pp.  201 
ff. ;  governor's,  pp.  87,  498 ;  mayor's, 
p.  591. 

Vice-President,  nomination  of,  pp.  172, 
180;    salary  of,  p.  205. 

Village  government,  p.  653. 

Virginia,  colonial  government  in,  pp.  3—20 
passim ;  part  in  the  Revolution,  pp. 
22-33  passim;  formation  of  state 
government,  p.  31  ;  suffrage  and 
quaUfications  for  office,  pp.  80  ff. ; 
early  election  of  governor,  p.  88 ; 
constitutions  of,  p.  98 ;  suffrage  in, 
p.  457  ;  amending  process,  pp.  458  ff. ; 
salary  and  term  of  governor,  p.  491  ; 
pay  and  term  of  legislators,  p.  527  ; 
local  government,  p.  653  ;  ballot  law, 
p.  680  ;  primary  law,  p.  694  ;  auditing 
committee,  p.  713. 

Volunteers,  army,   p.  344. 

Vote,  percentage,  exercising  right  to, 
pp.467,  476;  party,  p.  487. 


11^ 


Index 


Voters'  League,  Chicago,  p.  704. 

War,  powers  of  President  and  Congress, 
pp.  194  ff.,  257  ;  department,  pp.  221, 
347  ff. ;   cost  of,  p.  355- 

War  college,  p.  350  note  i. 

Ward  politics,  pp.  663  ff. 

Warfare,  conduct  of,  p.  350. 

Washington  (state),  popular  election  of 
Senators,  p.  242 ;  suffrage,  p.  453 ; 
amendment  process,  p.  459 ;  term  and 
salary  of  governor,  p.  491 ;  term  and 
jjay  of  legislators,  p.  527 ;  initiative 
and  referendum  for  cities,  p.  597  ;  ballot 
law,  p.  681  ;  primary  law,  p.  694. 

Water  power,  conservation  and  use  of, 
pp.  413  f. 

Waterways,  pp.  415  f. ;  commission, 
p.  406. 

Waterworks,  municipal,  p.  620. 

Ways  and  means  committee,  in  Congress, 
P-  363. 

Weights  and  measures,  pp.  258,  259. 

West  Point,  p.  349. 

West  Virgina,  amendment  process,  pp. 
458  f. ;  term  and  salary  of  governor, 
p.  491 ;  term  and  pay  of  legislators,  p. 


i?7;    uniformity  in  taxation,  p.  708; 
ballot  law,  p.  682. 

Whigs,  pp.  121,  131,  132. 

Wilson  bill,  p.  391. 

Wisconsin,  popular  election  of  Senators^* 
p.  242  ;  forestry  service,  p.  413  ;  suf- 
frage, pp.  453,  455;  amendment  process, 
pp.  458  f . ;  salary  and  term  of  governor, 
p.  491  ;  pay  and  term  of  legislators, 
p.  527 ;  legislative  output,  p.  541 ; 
legislative  reference  work,  p.  544 ; 
state  revisor,  p.  545  ;  anti-lobby  law, 
p.  544 ;  commission  government,  p. 
599  ;  ballot  law,  p.  681 ;  primary  law, 
pp.  688  ff. ;  state  committee,  p.  690 ; 
state  platforms,  p.  690 ;  county  com- 
mittee, p.  692  ;  valuation  of  railways, 
p.  729- 

Woman  suffrage,  pp.  453  ff.,  464 ; 
legal  rights,  p^89  ;  labor  of,  regulated, 
P-  734- 

Working-class.     See  Labor. 

Wyoming,  suffrage,  pp.  453,  455  ;  amend- 
ment process,  pp.  458  f. ;  salary  and 
term  of  governor,  p.  491 ;  pay  and 
term  of  legislators,  p.  527  ;  ballot  law, 
p.  682. 


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